NEW YORK PARTY SHUTTLE, LLC,d/b/a ON BOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC, D/B/A ON BOARD T

370 NLRB No. 19 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. New York Party Shuttle, LLC, d/b/a Onboard Tours, Washington DC Party Shuttle, LLC, d/b/a Onboard Tours, Onboard Las Vegas Tours, LLC, d/b/a Onboard Tours, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC, and New York Party Shuttle, LLC, d/b/a Onboard Tours and Its Alter Ego and/or Golden State Successor, NYC Guided Tours, LLC and Fred Pflantzer. Case 02–CA–073340 September 16, 2020 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL On July 9, 2019, Administrative Law Judge Kenneth W. Chu issued the attached supplemental decision. The Re- spondents filed exceptions, a supporting brief, a request for oral argument,1 an answering brief to the General Counsel’s cross-exception, and a reply brief. The General Counsel filed a limited cross-exception with supporting 1 The Respondents’ request for oral argument is denied as the record, exceptions, cross-exception, and briefs adequately present the issues and positions of the parties. 2 The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In his decision, the judge inadvertently stated that labor relations pol- icies and procedures dealing with customer service, conduct, and behav- ior were uniform between and among New York Party Shuttle, LLC (NYPS), OnBoard Las Vegas Tours, LLC (OBLV), and NYC Guided Tours, LLC (NYCGT). In fact, such were uniform between and among NYPS, OBLV, and Washington DC Party Shuttle, LLC (DCPS). The judge also inadvertently stated that the backpay period began on Febru- ary 12, 2011, rather than February 12, 2012. We have corrected these errors, which do not affect our disposition of this case. We affirm the judge’s finding that Respondents NYPS, DCPS, OBLV, NYCGT, and Party Shuttle Tours, LLC (PST), are a single em- ployer and, consequently, are jointly and severally liable for the unfair labor practice committed by NYPS. We therefore find it unnecessary to pass on the judge’s additional findings that NYCGT is liable as an alter ego of NYPS and as a successor to NYPS under Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), as such findings would be cumulative and would not affect the remedy. In adopting the judge’s single-employer finding, we do not rely on the judge’s statement that repayments of loans from NYPS to PST from 2012 to 2015 show a lack of arm’s-length relationship and an effort by NYPS to deplete its assets. We find no merit in the Respondents’ argument that the Respondents other than NYPS were deprived of the opportunity to assert that the argument and an answering brief to the Respondents’ ex- ceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision and record in light of the exceptions, cross-exception, and briefs and has decided to affirm the judge’s rulings, find- ings,2 and conclusions3 and to adopt the judge’s recom- mended Order. ORDER The National Labor Relations Board adopts the recom- mended Order of the administrative law judge and orders that the Respondent, New York Party Shuttle, LLC, d/b/a OnBoard Tours, Washington DC Party Shuttle, LLC, d/b/a OnBoard Tours, OnBoard Las Vegas Tours, LLC, d/b/a OnBoard Tours, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC, a Single Employer, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Dated, Washington, D.C. September 16, 2020 ______________________________________ John F. Ring, Chairman underlying Board Order is unconstitutional under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), affd. in part 573 U.S. 513 (2014). The Board previously considered and rejected this argument in 2017, when it granted the General Counsel’s Motion for Partial Summary Judg- ment against all of the Respondents in this proceeding. New York Party Shuttle, LLC d/b/a Onboard Tours, Washington D.C. Party Shuttle LLC, 365 NLRB No. 147. In that decision, the Board observed that “the Fifth Circuit’s judgment enforcing the Board’s underlying Order became final prior to the Supreme Court’s decision in Noel Canning.” Id., slip op. at 2. The Board concluded that “in these circumstances, it regarded the matters finally resolved by the court of appeals as res judicata in this proceeding.” Id. We also find no merit in the Respondents’ contention that the judge erred by finding that the Board has jurisdiction over the Respondents other than NYPS. In addition to the reasons stated by the judge, those Respondents are also subject to our jurisdiction in this proceeding be- cause they constitute a single employer with NYPS. Precision Indus- tries, 320 NLRB 661, 667 (1996). Contrary to the General Counsel’s cross-exception, the judge did not err by not ordering the Respondents to reinstate Charging Party Fred Pflantzer. This remedy has already been ordered by the Board and en- forced by the court of appeals. Thus, it was unnecessary for the judge to reorder the remedy. Kentucky River Medical Center, 354 NLRB 329, 329 fn. 4 (2009), reaffirmed and incorporated by reference 355 NLRB 594 (2010), enfd. 669 F.3d 784 (6th Cir. 2012). 3 In adopting the judge’s findings regarding Pflantzer’s backpay, we are not unmindful of Pflantzer’s acknowledgement that he failed to re- port his tip income on his tax returns. Therefore, consistent with Airport Park Hotel, 306 NLRB 857 (1992), and Hacienda Hotel & Casino, 279 NLRB 601 (1986), we shall furnish a copy of this supplemental decision to the Internal Revenue Service. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD _____________________________________ Marvin E. Kaplan, Member _____________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Nicole Lancia, Esq. and Eric Brooks, Esq., for the General Coun- sel. C. Thomas Schmidt, Esq., for the Respondent New York Party Shuttle, LLC. James M. Felix, Esq., for Respondents Washington DC Party Shuttle, LLC, NYC Guided Tours, LLC, OnBoard Las Vegas Tours, LLC; and Party Shuttle Tours, LLC. SUPPLEMENTAL DECISION STATEMENT OF THE CASE KENNETH W. CHU, Administrative Law Judge. This supple- mental proceeding was tried before me in New York, New York, on May 9–11, May 16–18, May 29–31, and June 26–28, 2018, pursuant to a compliance specification and notice of hearing is- sued on February 29, 2016 (GC Exh. 1(D)).1 The compliance specification alleges the amount of backpay due under the terms of the Board’s decision and order dated May 2, 2013 (New York Party Shuttle, LLC, 359 NLRB 1046 (2013)), which found Re- spondent New York Party Shuttle, LLC (hereinafter, NYP Shut- tle) violated Section 8(a)(3) of the National Labor Relations Act (Act) by discharging employee Fred Pflantzer (GC Exh. 1(A)). Among other things, the Board ordered New York Party Shut- tle, LLC to offer Pflantzer full reinstatement to his former posi- tion or, if that job was no longer available, to a substantially equivalent position, without prejudice to seniority or any other rights and privileges previously enjoyed. The Board also or- dered Respondent New York Party Shuttle, LLC to make whole any loss of earnings and other benefits suffered by Pflantzer re- sulting from his unlawful discharge, less any net interim earn- ings, plus interest compounded daily. 1 The General Counsel exhibits are identified as “GC Exh.” The Re- spondents’ exhibits are identified as “R. Exh.” and joint exhibits are iden- tified as “Jt. Exh.” The posthearing briefs for the GC and Respondents are identified as “GC Br.” and “R. Br.” The Transcript testimony is noted as “Tr.” On September 18, 2018, the counsel for the General Counsel moved to correct the transcript is granted herein. 2 The new caption reads as “NEW YORK PARTY SHUTTLE, LLC, d/b/a ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC, d/b/a ONBOARD TOURS, ONBOARD LAS VEGAS TOURS, LLC, d/b/a ONBOARD TOURS, NYC GUIDED TOURS, LLC, and PARTY SHUTTLE TOURS, LLC, a Single Employer.” 3 In the motion for partial summary judgment before the Board, the counsel for the General Counsel addressed in fn. 1, the contentions of NYPS’ answer, that the non-NYPS Respondents objected to the lack of service and lack of an opportunity to challenge the factual allegations in The Board’s decision was enforced by the U.S. Court of Ap- peals for the 5th Circuit on November 19, 2013 (New York Party Shuttle, LLC v. NLRB, No. 13-60364 (5th Cir. 2013)) (entering default judgment) (GC Exh. 1(B) and (C)). The Respondent New York Party Shuttle, LLC (hereinafter, NYPS) reinstated Pflantzer on July 28, 2014, but terminated him on August 13, 2014. The Respondent contend that Pflantzer was reinstated but after being warned that operating a competing business was grounds for termination, was discharged when he failed to cease his competitive activities. Procedural Background On March 31, 2017, the Regional Director issued an amended compliance specification, and alleged that Respondents listed in the case caption constitute a single employer (GC Exh. 1(F)).2 On May 24, 2017, the Regional Director issued a second amend- ment to the compliance specification (GC Exh. 1(K)). On June 20, 2017, counsel for the General Counsel filed a motion for par- tial summary judgment before the Board and the motion was granted on November 16, 2017, in a Supplemental Decision and Order (GC Exh. 1(AA)). The Board found, among other things, that the Respondents were inappropriately attempting to reliti- gated a valid underlying Board order issued on November 19, 2013, that found Respondent NYPS violated Section 8(a)(3) of the Act by discharging Pflantzer. The Board further rejected the Respondents’ contention that reinstatement is not warranted be- cause Pflantzer was operating a competing tour business when NYPS was again attempting to relitigate an issue that was de- cided in the underlying unfair labor practice proceeding.3 The Regional Director issued a third amendment to the com- pliance specification on January 12, 2018, to add in para. 2 that Party Shuttle Tours, LLC (PST) with an office and place of busi- ness in Houston, Texas is a holding company for NYPS, Wash- ington DC Party Shuttle, LLC (DCPS) and OnBoard Las Vegas Tours, LLC (OBLV) and to update the backpay calculations (GC Exh. 1(BB)). On January 25, 2018, the counsel for the General Counsel moved for a partial summary judgment before the administrative law judge for failure of the Respondents to timely file an answer to the third amendment to the compliance specification and that the only factual dispute that now remains is the issue of the Re- spondents as a single employer (GC Exh. 1(EE)). The Respond- ents filed an opposition to the motion (GC Exh. 1(GG)) and the counsel for the General Counsel filed a reply to the opposition the compliance specification. The Respondents subsequently maintained that they received service, but the service was untimely. The counsel for the General Counsel moved for the Board to strike those allegations from the NYPS’ answer to the complaint. The Board denied the motion to strike and instructed that these matters be addressed at the compliance hearing (Supplemental Decision and Order at GC Exh. 1(AA) fn. 2). Upon my review, I find that the service was timely. It is the burden of the Respondents to show that service was untimely. They did not. Fur- ther, through this proceeding, the Respondents had ample opportunities to challenge the specifications and also on the issue as to whether the Respondents are joint employers, alter egos and/or a Golden State suc- cessor. The issue of finding liability on New York Party Shuttle, LLC when it discharged Fred Pflantzer has already been decided and cannot be challenged at the compliance proceeding, as attempted by the Re- spondents. NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 3 on February 1, 2018 (GC Exh. 1 (HH)). On February 12, I issued an order denying the General Counsel’s motion for partial sum- mary judgment, stating the Respondents’ answer was timely filed based upon the extension of time for filing on account of the federal government shutdown (GC Exh. 1(II). A fourth amendment to the compliance specification was is- sued by the Regional Director on April 12, 2018 to further reflect updates on the backpay calculations and interim employment of Pflantzer (GC Exh. 1(JJ)).4 The same objection to the lack of service and the same contentions made by NYPS before the Board and previously decided by the Board in its Supplemental Decision and Order was again made by NYPS in its answer to the fourth amendment on May 2, 2018, to the compliance speci- fications (GC Exh. 1(NN)). On May 3, the counsel for the General Counsel moved to strike portions of the Respondents’ answer to the fourth amend- ment to the compliance specifications that challenge the under- lying Board Supplemental Decision and Order (GC Exh. 1(SS)).5 The record opened on May 8, 2018 and the motion to strike was addressed by the administrative law judge. In agreeing with the counsel for the General Counsel, I decided not to hear and will exclude any evidence regarding the contentions of the Respond- ents in pars. a, c, d, 7, 8, 11, 29, 31, 40, 41, and 42 of its answer (Tr. 8).6 FINDINGS OF FACT The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due re- gard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). A credibility determination may rely on a variety of factors, including the context of the witness’ testimony, the wit- ness’ demeanor, and the weight of the respective evidence, es- tablished or admitted facts, inherent probabilities, and reasona- ble inferences that may be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001). Credibility findings need not be all-or-nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a witness’ testimony. Daikichi Sushi, above. Upon the entire record, including my observation of the de- meanor of the witnesses and corroborating their testimony with the objective findings in the record and after considering the ar- guments and briefs submitted by the parties, I make the follow- ing FINDINGS AND CONCLUSIONS ON THE BACKPAY AWARD a. Backpay standard of review In Cobb Mechanical Contractors, Inc., 333 NLRB 1168, 1168 (2001), the Board defined the purpose of a backpay proceeding as follows: 4 The Respondents collectively filed a motion for summary judgment before the Board on April 11, 2018, and the Board dismissed the motion in a 1-page order dated May 8, 2018 (GC Exh. 1(OO)). 5 The counsel for the General Counsel inadvertently omitted the mo- tion to strike from the formal papers and included the motion to strike in the posthearing briefs. The Respondents did not oppose the inclusion of In compliance proceedings, the Board attempts to reconstruct, “as nearly as possible,” the economic life of each claimant and place him in the same financial position he would have enjoyed “but for the illegal discrimination.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Determining what would have happened absent a respondent’s unfair labor practices, however, is often problematic and inexact. Consequently, a backpay award “is only an approximation, necessitated by the employer’s wrongful conduct.” Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977). The Board’s well-settled policy is that “[a backpay] formula which approximates what discriminatees would have earned had they not been discriminated against is acceptable if it is not un- reasonable or arbitrary in the circumstances.” La Favorita, Inc., 313 NLRB 902 (1994). Further, it is also well settled that any uncertainty in the evidence is to be resolved against the Respond- ent as the wrongdoer. See Ryder/P*I*E* Nationwide, 297 NLRB 454, 457 (1989), enfd. in relevant part 923 F.2d 506 (7th Cir. 1991). In determining the amount of backpay owed a discriminatee, the Board may use any formula that will approximate what the discriminatee would have earned absent the discrimination, if the formula is not unreasonable or arbitrary in the circumstances. Performance Friction Corp., 335 NLRB 1117 (2001) (and cases cited therein). As such, the General Counsel has discretion in selecting a formula that will closely approximate the amount due. It is significant to note that the General Counsel need not find the exact amount due nor adopt a different and equally valid formula that may yield a somewhat different result. See NLRB v. Overseas Motors, 818 F.2d 517 (6th Cir. 1987); Kansas City Refined Helium Co., 252 NLRB 1156, 1157 (1980), enfd. 683 F.2d 1296 (10th Cir. 1982). If a respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, the answer shall specifically state the basis for such disagreement, setting forth in detail the respondent’s position as to the applica- ble premises and furnishing the appropriate supporting figures. b. Backpay calculations The General Counsel seeks backpay plus interest for Pflantzer based upon the earnings of a comparable employee, reduced by his admitted interim earnings. The counsel for the General Counsel maintains that Pflantzer is entitled to backpay with in- terest from the date of his unlawful discharge by NYPS on Feb- ruary 12, 2012, through March 31, 2018. The General Counsel does not seek expenses or collateral losses. In a backpay proceeding, the burden to prove a reasonable amount of gross backpay is on the General Counsel. The gross backpay is then reduced by Pflantzer’s interim earnings from the time of his discharge through March 31, 2018. The Respondents have the burden to establish facts that reduce the amount due for the motion to strike (GC Br. at fn. 5). I have identified the motion to strike in the formal papers as GC Exh. 1(SS). 6 In deciding to strike the answers but not to actually redact the refer- enced paras. from the Respondents’ answer, I attempted to preserve the record in the event that Respondents decide to appeal my ruling (Tr. 8– 10). 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gross backpay. Here, the Respondents contend that Pflantzer un- reasonably failed to apply for jobs within the relevant geographic area. In such a situation, it is the General Counsel’s burden to show some competent evidence of the discriminatee’s efforts at job search The Respondents also maintain that it never acquired any ob- ligation for backpay because Pflantzer earned more than if he had continued his employment with NYPS. However, there is an established governing principle as the Board explained in Cobb Mechanical Contractors, above [A]t the heart of the Respondent’s exceptions is the argument that, with minor exceptions, the discriminatees are entitled to no backpay. It is axiomatic, however, that the finding of an un- fair labor practice is presumptive proof that some backpay is owed. [Citation omitted.] See also La Favorita, Inc., above (“well settled that the find- ing of an unfair labor practice is presumptive proof that some backpay is owed”). As indicated, to the extent that the Respond- ents claim that it should escape any liability for backpay, it must rebut the presumption that some amount of monetary compensa- tion is required to remedy its unlawful conduct. Here, I find that the formula and calculation proposed by the Region accurately reflects the wages that the discriminatee Pflantzer would have been paid by the Respondents had he not been discharged unlawfully. I have considered Respondents’ ar- guments that Pflantzer should be denied any backpay and reject them. c. The testimony of Fred Pflantzer Fred Pflantzer has been a tour guide for over 10 years in New York City. Pflantzer was employed by NYPS in about October 11, 2011. Pflantzer would conduct guided tours on a 24-passen- ger bus. He was paid by NYPS of $20 dollars per hour and worked on tips, which he testified was $35. Pflantzer would con- duct one tour per day and about 3 or 4 tours per week. Each tour would take 5.5 to 6 hour per day (Tr. 1221, 1407). Pflantzer did not work on weekends for NYPS (Tr. 1385). Prior to and during his employment with NYPS, Pflantzer had his own company named New York See Tours (NYST) (Tr. 1219–1222). Pflantzer was the sole proprietor of NYST, which he started in 2010. Pflantzer would work one tour each Saturday for NYST (Tr. 1254, 1337). Pflantzer had no other outside or “moonlighting” jobs prior to and during his employment with NYPS except with his Saturday tours for his own company (Tr. 1337). Pflantzer testified that he did not seek work during the slow period between January and March 2012 because he was still employed by NYPS and expected the company to grow in the future. He also believed he was not getting work from NYPS because that period was just prior to his termination on February 12 (Tr. 1339–1341). Pflantzer was discharged by NYPS on Feb- ruary 12, 2012. After his discharge on February 12, 2012, Pflantzer stated he sought employment from various sources. In- itially, in order to replace his lost earnings, Pflantzer immedi- ately attempted to booster the business in his own company. Pflantzer hired a consultant to enhance the visibility of his 7 Fred Moskowitz, former president of NYPS, testified that there was no written policy at NYPS of paying a flat tip to driver of $40 or $50 (Tr. company when customers are searching on the internet for tour operators (Tr. 1366, 1367). Pflantzer also employed the use of Groupons, which gave dis- counts for customers if they decide to use the Groupons for NYST. Pflantzer said that Groupon would take 50 percent of the ticket price and stated that if a tour is advertised as $100 tour, the use of a Groupon would be $50 for the tour and Pflantzer’s com- pany would receive $25. During this time, Pflantzer also pro- duced brochures for his company and distributed the brochures at various NYC hotels Pflantzer testified that the use of Groupons had increased the business for NYST. He stated that in 2012, he did one tour per week. In 2013 because of Groupon, NYST did 30–40 tours for the year and about 20 in 2014. Pflantzer would rent the tour bus for 4-hour tour at $500 dollars. Pflantzer would use a 12 or 6 passenger tour bus to conduct his tours. He would tip the driver $40 for each tour.7 Pflantzer said he would receive tips in the range of $40–50 dollars. He would always give $40 to the bus driver, so his tip minus the standard $40 to the driver would be between $5–10 dollars. Pflantzer recall telling the Region’s compliance officer that he split his tips with the driver and that the average tip at NYPS was $35 and with all other subsequent employers (Tr. 1633–1635). Pflantzer did not deposit his tips in a bank account and did not report the tip amounts in his tax re- turns (Tr. 1381, 1382, 1394, 1395, 1439). When Pflantzer needed help at NYST, he would hire addi- tional tour guides at $25 per hour. In 2013, Pflantzer did 10 per- cent of the tours because he needed to focus on managing the tours due to the high volume from Groupon sales (Tr. 1267, 1268, HT 1372, 1374). He explained the need to hire tour guides in 2013 because that was the Groupon year and the tours were concentrated during a particular busy time of the year (Tr. 1269). Pflantzer did not work for any other companies in 2013 (Tr. 1418). In 2014, Pflantzer became disappointed with Groupon be- cause of the 50 percent share of profits taken by Groupon. Pflantzer attempted to negotiate with Groupon for a reduction but was unsuccessful (Tr. 1368, 1374). Pflantzer stopped using Groupons and reduced his tours to walking tours with occasional bus tours under NYST. Pflantzer stopped altogether his NYST operations in mid-2014 and sought employment with other tour companies at that time. Pflantzer was hired by Go New York (GONY) and conducted tours on a double-decker bus with on- off options for the customers on a prescribed route. There usu- ally 55 passengers on the tour bus. Each tour was approximately 2 to 3 hours. Pflantzer received $15 per hour and tips were pro- hibited by GONY (Tr. 1223–1228). In 2014, Pflantzer was briefly reinstated by NYPS on July 27 and again terminated on August 13. Pflantzer also worked at another tour company called High Quality in late 2014 and early 2015 (Tr. 1226). Pflantzer worked at GONY starting on July 4, 2014 until he was discharged about January 16, 2015 (Tr. 1343, 1493). Pflantzer did not work tours on Saturday for his own company during this time because he worked on GONY tours on the 1731). As such, Pflantzer’s decision to tip $40 to the bus driver was not unreasonable since it was up to him as to the amount to tip. NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 5 weekends. He stated that he may have also conducted a couple of tours under NYST during this time from July through Decem- ber 2014 (Tr. 1392, 1393). His employment with GONY ended with a NLRB charge and a settlement of that charge in 2015 (GC Exh. 169). Pflantzer received a backpay award with a W-2 of $15,687, which he reported in the appropriate year for the back- pay. He also received a W-2 from GONY which he reported on his tax return (1225–1227, 1451).8 The checks from GONY went into Pflantzer’s personal bank account. Pflantzer consid- ered wages received with a W-2 was personal and revenues re- ceived with a 1099 was business and deposited into his NYST bank account (Tr. 1454).9 For the 2014 tax year, Pflantzer ad- mitted that there was no Schedule C (business income) for his company, NYST, and did not recall if he had any business in- come. Pflantzer’s 2014 tax return also showed wages at $10,149, but he could not recall where the income came from (GC Exh. 3(C); Tr. 1586, 1587). In 2015 and after his discharge from GONY, Pflantzer made several attempts to seek employment. He contacted Real New York Tours; he interviewed for a guide position on a boat tour called Circle Line, which he did a couple of tours hoping to be hired, but was not; he attended an open house for Big Bus Tours; use his colleagues and associates in the tour industry for potential job offers; search for tour jobs on Craigslist and Trip Advisor; and pursued other avenues of employment without real success. Pflantzer also admitted that he did not apply for jobs at particular tour companies (Tr. 1285-1303, 1351–1359).10 Pflantzer was briefly employed by USA Guided Tours for 3 months (1st quarter of 2015) and conducted 2–3 bus tours per week at 5–6 hours per tour and received $19 per hour and $20– 35 in tips, which he split with the bus driver. Pflantzer believed he received either an employer W-2 or an IRS form 1099 from USA Guided Tours. He stopped working with Guided Tours af- ter one of his payroll checks was not honored by his bank Pflantzer testified that he would not work in a company that had not honored his paycheck11 (Tr. 1249–1253, 1311). Pflantzer also worked with a start-up tour company named High Quality (HQ) in late 2014 and early 2015 on an intermit- tently basis. He was hired on a “as needed” basis (Tr. 1350, 1351). Pflantzer said the tours conducted were similar to NYPS. The tours were by bus, the tour guide stays with the passengers; there were specific stops and a brief guided tour at each stop. HQ also had a boat ride component. He said there were usually 24 passengers. He was paid $25 dollars per hour for one or two tours per week. Each tour took 5-6 hours. Pflantzer would re- ceive $35 in tips, which he split with the driver. Pflantzer worked 3 to 5 days per month when he was contacted to work. He received more offers to work in 2016, about 4, 5 times per 8 Pflantzer waived reinstatement as part of his settlement with GONY. Pflantzer testified that GONY terminated all tour guides in early 2015 so even if he had accepted reinstatement, he would have been subsequently terminated again (Tr. 1423, 1424). 9 I would note that Pflantzer’s wages for 2015 was only $112 dollars, as represented in his 2015 tax return. Pflantzer testified that the $112 in wages noted on his 2015 tax return was from employer Open Loop (Tr. 1506). The NLRB backpay settlement was received 2016 and that amount was included in his W-2 wages for 2015 by the compliance of- ficer (GC Exh. 3(D), (C). month. Pflantzer was also in partnership with HQ but only dur- ing the Christmas seasons in 2015 and 2016. Pflantzer discon- tinued his partnership with HQ and he stopped working at HQ towards the end of December 2016 because of a disagreement over the holiday tours (Tr. 1226–1230, 1309, 1429, 1430). Pflantzer testified he received $1,500 from HQ in 2015 and 2016 (Tr. 1459, 1472). Pflantzer testified that he also worked as a tour guide for Un- cle Sam’s in 2015, but it could have been in 2016 (Tr. 1343). He said the company conducted only walking tours. He recalled working at Uncle Sam’s through December 31, 2017. He worked 2 or 3 tours per week, usually about 2 hours per tour. He was paid $30 per hour and received $20 in tips (Tr. 1230, 1231– 1234). Pflantzer testified that he is still employed with Uncle Sam’s at the time of the trial (Tr. 1309). Pflantzer did not receive a 1099 or a W-2 form from Uncle Sam’s. He could not recall if he reported his income from Uncle Sam’s on his tax returns in 2015, 2016, or 2017 (Tr. 1434, 1435, 1475). Pflantzer worked briefly for a tour group called Open Loop/RSDL in summer 2015 (Tr. 1343, 1344). He conducted 2 open bus tours and received a W-2 of $107 dollars. He com- plained of receiving little or no tips (Tr. 1246–1248). Pflantzer also worked for a tour company named Maxim also during sum- mer 2015 and conducted 5 or 6 guided tours and earned $1200 to $1400 dollars. Pflantzer testified that the money earned from Maxim went into his NYST bank account and reported on his tax returns. As a company policy, Pflantzer received no tips from Maxim. Pflantzer said that Maxim did not offer him any other tour jobs after summer 2015 (Tr. 1453–1457). Pflantzer testified to the seasonal nature of the tour industry and said there was very few tours after Christmas until St. Pat- rick’s Day. He said that from March to Christmas is the busiest time for the tours. He stated that during the busy season, he would conduct 2 or 3 hours per week. Pflantzer stated that he did no walking tours for Uncle Sam’s in 2018 (January through the time of this trial) because the tour business was in its slow season (Tr. 1231, 1232) In addition to Uncle Sam’s, Pflantzer worked at New York Tours One (NYTO), which was also known as the Wall Street Experience (WSE), in 2015 (Tr. 1235, 1389, 1343). He stated that NYTO (aka Wall Street Experience) kept him busy and he spent less time on his own company during this period (Tr. 1364, 1365). He said NYTO conducted walking tours and during the busy season, he would do 5 or 6 tours per week. He said that the tours varied in duration from 5 to 9-hour tours depending on the tour route. Some tours were short (the Ground Zero Tour) and he could do 2 tours per day or 6–10 tours per week. Some tours were up to 6 hours (the Statue of Liberty) and he was only able 10 As an example, Pflantzer testified he did not apply for a job at New York Shuttle Tours because Tom Schmidt, former CEO of NYPS, was also a partner in that company and he did not apply for a job at Locations Tours because those tours were movie-oriented locations and he was not knowledgeable in that area (Tr. 1356–1358). 11 Pflantzer never had a payroll check not honored by NYPS and therefore, he would not have a problem returning to NYPS as an em- ployee (Tr. 1328). 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to conduct 10 of those tours for the entire year in 2016. Pflantzer believed he received a 1099 form for $18,000 from WSE in 2016. Pflantzer stopped conducting the 6-hour tours in 2017. Pflantzer also conducted 9-hour tours and some private tours. He conducted about 10 9-hour tours and about the same number of private tours. Pflantzer received $40 per hour for the two 4-hour tours and received $25 per hour for the six, 9 hour and private tours. He would average $20 in tips for his tours and would re- ceive a designated amount of $40–50 in tips for the private tours. In 2017, Pflantzer worked almost exclusively the Ground Zero Tours for NYTO. He recalled doing three Ground Zero tours and two Statute of Liberty tours. Pflantzer believed he received an employer 1099 for his work at NYTO in 2016, which he re- ported on his tax returns (Tr. 1236–1244). Pflantzer continues to work for NYTO after December 31, 2017, but was discharged about January 8, 2018 (Tr. 1309, 1310, 1436). In 2017, Pflantzer also worked at One on One Tour, starting on September 11 (Tr. 1244, 1351). This was a bus and walking tour that is scheduled only once a year. Pflantzer worked 4 hours per tour and was paid for the day of $1753. The money received was also used to paid for the bus, which cost him $750 per day and a $100 tip to the driver. Pflantzer would receive a $100 tip directly from the employer (Tr. 1246). Pflantzer continues to work this tour every year since 2017 (Tr. 1310, 1311). Throughout 2016 and 2017, Pflantzer also resumed tours un- der his own company NYST. He conducted walking and private tours and believed he did 10 walking tours in 2016 until he started to work for NYTO (Wall Street Experience) in May, where he spent most of his work time (Tr. 1278, 1279, 1445). Pflantzer testified that he made an average of $25 dollars in tips doing tours for NYTO and NYST in 2016 (Tr. 1446). d. The compliance officer’s backpay calculations Rachel Kurtzleben (Kurtzleben) has been the compliance of- ficer for Region 2 since June 2016 and was the acting officer since 2015. Kurtzleben testified to the calculations that she had prepared as reflected in the fourth amendment to the compliance specification (GC Exh. 1(JJ)(a-c)). She testified that the backpay period was from February 12, 2012, to July 27, 2014. At that point, Pflantzer was reinstated by NYPS, but subsequently dis- charged a second time. The backpay period resumed on August 14, 2014, after Pflantzer was discharged to March 31, 2018, and continuing because Pflantzer had not received a valid offer of reinstatement (Tr. 133). I credit Kurtzleben’s testimony regarding the preparation of the compliance specification, the source of factual information on which the specification is based and the rationale for the methods applied to compute backpay. The compliance officer’s backpay formulation is a standard calendar quarterly computa- tion provided for in F. W. Woolworth, 90 NLRB 289 (1950), with offsets for net interim earnings. Regarding interim earnings and mitigation efforts, the compliance officer utilized reports pre- pared by the employer, Pflantzer’s taxpayer returns, his 1099s, W2s, and responses from her own investigatory interviews of the discriminatee. For backpay purposes, I note that Pflantzer did not have regu- lar set hours when he was employed as a tour guide with NYPS. His work hours were based upon the time spent while conducting tours as a guide. As such, it cannot be definitely established how many hours per day that Pflantzer would have worked had he not been discharged. In addition, Pflantzer received tips as a tour guide and the tips were not reported in NYPS’ payroll records. I believe that Kurtzleben performed a laudable task in determining Pflantzer’s backpay under such circumstances. Kurtzleben testified that she developed a spread sheet for her backpay calculations with columns that listed the following: cal- endar year, yearly quarters, end date of each week, regular hour worked, overtime worked, hourly rate, gross backpay, any quar- terly interim earnings, net backpay, interim expenses, medical expenses, and net backpay and expenses (GC Exh. 1(JJ)(a)). e. The comparator method For the “regular hours” worked column in GC Exh. 1(JJ)(a)), Kurtzleben testified that those would have been the hours Pflantzer worked had he not been discharged. Kurtzleben stated that she determined the hours Pflantzer would have worked by reviewing the hours of a comparator employee. Kurtzleben first looked at Pflantzer’s work hours during a full week when he was reinstated at NYPS in 2014 and then averaged his hours for the remaining pay periods in 2014 after Pflantzer was discharged in August 2014. Kurtzleben then looked at other tour guides at NYPS with similar hours during the same period as Pflantzer and concluded that Edwin Jorge (Jorge) had similar hours to Pflantzer in 2014. Kurtzleben then used Jorge’s hours of work from February 18, 2012, to October 20, 2014 (Tr. 139). Kurtz- leben explained she used Jorge as a comparator to determine av- erage hours worked because he best reflected the changes in the hours worked during the slow and busy seasons and one who also reflects bonuses received. Kurtzleben noted some gaps in Jorge’s employment history with NYPS in 2013. Kurtzleben looked at other tour guides to make sure that they did not also have significant gaps of non- work hours during the same period as Jorge and then went back to Jorge’s earlier work weeks during the same quarter to review his weekly hour worked, average out those hours and apply the hours to Pflantzer’s hours when there were missing periods of employment in Jorge’s hours (Tr. 141, 142). Kurtzleben testified that the “hourly rate” column was $20 dollars and based upon NYPS payroll records. She testified that the “gross backpay” column is the hours worked multiplied by $20 dollars per hour plus tips to determine Pflantzer’s interim earnings for each calendar quarter. Kurtzleben stated that there was no information on tour guide hours after October 20, 2014. Kurtzleben determined the hours by using Jorge’s hours during the last full pay year from October 2013 to October 2014 and repeated the same hours for subse- quent years in 2015, 2016, 2017, and 2018 to arrive at the gross pay. For example, in the week ending August 8, 2015, the gross pay (not including tips) was $738. The $738 is reflected in Au- gust 13, 2016, and August 12, 2017 (GC Exh. 1(JJ)(a)). Kurtzleben testified that she then added tips and bonuses to the gross backpay because Pflantzer would have received tips from his tour service. Tips were not reflected in the payroll rec- ords of the tour guides. Kurtzleben determined Pflantzer’s tips based upon his representations that he received tips for each tour NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 7 of an amount ranging from $20–50 dollars. Kurtzleben took a middle point of $35 in tips for each tour. As I noted above, the regular hours worked are based upon the length of each tour, Kurtzleben accepted Pflantzer’s representation that each tour was from 5 to 6 hours. Kurtzleben used a midpoint of 5.5 hours as an average for each tour (GC Exh. 1(JJ)(b)).12 Kurtzleben tes- tified that bonuses were intermittent and attributed the bonuses received by Jorge to Pflantzer when earned by Jorge (Tr. 138– *140). Kurtzleben testified that the weekly tips during the backpay calculation period was determined by taking the hours worked per week and dividing the hours by 5.5 and then multiplying the tip amount of $35 to arrive at the weekly tip amount (Tr. 135– 137). My own review of Kurtzleben’s calculations for the gross backpay substantiates her testimony. For example, for the week ending February 18, 2012, the hours worked was 19.60 (based upon Jorge as a comparator employee) and the hourly rate was $20 (based on payroll records), giving Pflantzer a gross backpay of $392 for that week (GC Exh. JJ(a). In addition, the tips for that same week would have been the hours worked (19.60) di- vided by the estimated hour for each tour (5.5) multiplied by $35 dollars to reach a weekly tip of $124.73 (GC Exh. 1(JJ)(b)). The amount of the weekly tip ($125) was added to the backpay of $392 for a total gross backpay of $517 for the week ending Feb- ruary 18, 2012. f. Pflantzer’s interim earnings Kurtzleben testified that gross backpay was offset by any in- terim earnings received by Pflantzer. Kurtzleben reviewed Pflantzer’s tax returns from 2012 to 2017; a 1099 (earnings state- ment) from one employer in 2016, a settlement in another NLRB complaint, his own business, and information provided by him on tips and wages not reported in his tax returns. Kurtzleben reviewed the same information of wages/salaries, and business income (or loss) from the Schedule C of each year that reflects profits and loss from his business for each tax year (Tr. 144–149) (GC Exh. 3(A-F). Kurtzleben provided testimony as to her cal- culations of the backpay period from February 12, 2012, through March 31, 2018. 2012- Pflantzer had no wages or tips but had $27,503 in busi- ness income. 2013- Pflantzer had no wages or tips but had $14,538 in busi- ness income. 2014- Pflantzer had $10,149 in earnings. 2015- Pflantzer received wages of $112 and business income of $8341. 2016- Pflantzer received wages of $15,687 with a Schedule C business income of $2,555. Kurtzleben stated that the 2016 tax return contained two schedule C and the second Schedule C indicated business income of $19,535. Kurtzleben testified that Pflantzer explained to her that the second Schedule C was ac- tually wages received from employer HQ. Kurtzleben consid- ered the second Schedule C as wages. 12 Ron White, operations manager for NYPS, credibly testified that the “New York See It All” tours usually are scheduled for 5.5 hours, but the guides would work for 6 to 6.5 hours because there would be prepa- ration time before the tour and questions asked by the tourists after the 2017- Pflantzer again had two Schedule C forms. Kurtzleben accepted the first Schedule C as a business loss of $9,222 but the second schedule C filed with the 2017 tax return had $2,3760 business income, which Kurtzleben accepted as wages after Pflantzer explained that the income was actually wages. Kurtzleben also explained that Pflantzer had his own tour business while employed at NYPS and this amount was not cal- culated in his interim earnings. Kurtzleben testified that the $335 was Pflantzer’s moonlighting business when he was conducting tours on one Saturday every week at NYST, which was not in- terim earnings because Pflantzer received those earnings while working at NYPS. Kurtzleben explained how she arrived at the average earnings per tour that Pflantzer generated in his own business. Kurtzleben testified that she took the amount Pflantzer earned in his own business for 2012, 2013, and 201413 and divided the profits by the estimated number of tours that he conducted for his own busi- ness during the same time period (Tr. 151). Kurtzleben said that Pflantzer informed her that his tips ranged from $40 to $50. Kurtzleben then took a midpoint of $45 and took off $40 because Pflantzer explained to her that $40 was given the bus driver, leav- ing Pflantzer with a $5-dollar tip per tour. The profits Pflantzer received from his own tours were subtracted from his weekly in- terim earnings because that would have been income he would have received and would continue to receive in operating his own business while employed by NYPS (Tr. 151, 152). In verifying the accuracy of Kurtzleben’s yearly calculations, I calculated Pflantzer’s interim earnings in 2012 by applying the formula used by Kurtzleben and arrived at the following infor- mation: 2012: Pflantzer’s only source of income was his own business. Kurtzleben applied Pflantzer’s total earnings in 2012 ($27,503) as noted in his tax return and added the tips ($5) per tour (Pflantzer had represented to Kurtzleben that he conducted 60 tours), which equal $300 for 2012. That amount was added to the income reported on his 2012 tax return ($27,503+$300=$27,803), and I subtracted $1,7420 ($335 for moonlighting while working at NYPS, multiplied by 52 weeks) (not calculated in earnings); and divide that number ($10,383) by 46 weeks (the number of weeks in the 2012 pay period). This would equal Pflantzer’s interim earnings of $226 per week in 2012. My calculations for Pflantzer’s interim earnings of $226 per week in 2012 and for 2013 is consistent with and confirmed the calculations performed by Kurtzleben (GC Exh. 1JJ(a); Tr. 152, 153). Kurtzleben continued with her narration in calculating the Pflantzer’s income for 2014. She testified that the first 2 quarters for 2014 were solely his own income from his business and he informed Kurtzleben that the amount was $4100 for both quar- ters. Kurtzleben then added his tips ($5 tip for 30 tours) from his own business and subtracted the aforementioned $335 in tips for tours that took additional time (Tr. 937, 938). As such, his testimony confirms Pflantzer’s assertion that a most of his tours were under 6 hours, but some lasted 6 hours (Tr. 1395). 13 Pflantzer stopped conducting his Saturday bus tours after 2014. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD his moonlighting tours for the 2 quarters, which would give Kurtzleben the weekly interim earnings for the first half of 2014. Kurtzleben testified that Pflantzer had no quarterly interim earn- ings for 2013 and the first half of 2014 (GC Exh. 1(JJ) Exh. A at 2–4)) because his moonlighting of $335 exceeded his interim earnings of $226 per week (Tr. 153–155). In the second half of 2014, Pflantzer’s earnings reflected from his tax return was divided by 23 weeks. No tips were included in the earnings because Pflantzer informed Kurtzleben that his earnings were solely from his work at Go New York Tours and tipping was prohibited by that company. Kurtzleben was also informed that Pflantzer did not do any moonlighting because he was not operating his business while working with Go New York Tours (Tr. 155). Kurtzleben then divided his 2014 earnings of $10,149 (GC Exh. 3(C): Pflantzer’s 2014 tax return) by 23 weeks to arrive at his weekly interim earnings of $441 for the second half of 2014. Kurtzleben said the period was 23 weeks and not 26 weeks because Pflantzer had worked 3 weeks for NYPS in the second half of 2014 (Tr. 156). Kurtzleben used the same formula of total weekly earnings less total weekly moonlight work for calculating earnings for 2015 through 2018 even though Pflantzer had a series of differ- ent employers. In 2015, Pflantzer worked in his own business; with the Open Loop tour company; received a NLRB settlement from Go New York Tours; and worked at USA Guided Tours and Uncle Sam’s. There were no earnings in the first 2 weeks in 2015 because moonlighting exceeded total weekly earnings. Kurtzleben cal- culated the weekly earnings by totaling earnings from Pflantzer’s own business and Open Loop for the first quarter of 2015. Pflantzer informed Kurtzleben that there were no tips from his own business because he changed from bus tours to walking tours and received no tips. The GONY NLRB settlement was received in 2016 but covered pay weeks in 2015 and it was cal- culated as backwages for 2015 by Kurtzleben. She then took Pflantzer’s settlement amount divided over the backpay period in 2015, which resulted in $257 per week. Kurtzleben stated that the USA Guided Tours income was not reported by Pflantzer. Kurtzleben accepted Pflantzer’s representation that he the tours he worked per week, wage rate and tips amounted to $107 per week. Kurtzleben said that she included the tips told Pflantzer told her. US Sam income was not included in the tax returns but Pflantzer informed Kurtzleben, in similar fashion like USA Guide Tours, the number of tours, wage rate and tips (GC Exh. 1(JJ at 5, 6); Tr. 157–160). In 2016, Pflantzer’s income came from his own business; part of the Go New Tours settlement, and employment with High Quality, Uncle Sam’s, and Wall Street Experience. Pflantzer also included two schedule C (business profit and loss) in 2016. Kurtzleben considered the second schedule C as income from wages ($19,535) and not as business income and did not deduct the business expenses in the second schedule C to determine in- terim earnings (GC Exh. 3E). Kurtzleben also included $200 in tips that Pflantzer received for his employment at Wall Street 14 The Respondents’ answer to the compliance specification denied that Pflantzer was a statutory employee under the Act, but rather, he worked as an independent contractor. This argument has been previously Experience (Tr. 161–164). In 2017, Pflantzer worked at his own company, Uncle Sam’s, Wall Street Experience and One-on-One Tours. Kurtzleben again discovered that Pflantzer had filed two Schedule C with ins 2017 returns. Kurtzleben was informed by Pflantzer that the first Schedule C was from his own business and suffered a loss of $9222. Based upon this explanation, Kurtzleben determined that Pflantzer had no interim earnings from his own business in 2018 (GC Exh. 1(3(F). Kurtzleben also considered the amount of $23,760 from the second Schedule C as income from Wall Street Experience and not business expenses. Kurtzleben also included $200 that Pflantzer received from tips at Wall Street Experience. For One-on-One Tours, Kurtzleben was informed that Pflantzer only worked one tour and he received $1,000 in wages and $100 in tips. Kurtzleben continued to subtract out Pflantzer’ moonlight work (Tr. 163–165; GC Exh. 1(JJ at 6)). Finally, in 2018, Kurtzleben included Pflantzer’s income from his own business, one tour for Wall Street Experience and his work at Uncle Sam’s. At the time of the backpay calculations, Pflantzer’s 2018 tax return was not yet filed so she received es- timates from Pflantzer. It was represented that Pflantzer earned $13,000 in the first quarter from his own business and Kurtz- leben divided that amount by 13 weeks in the quarter. Income from Wall Street Experience was based upon Pflantzer’s previ- ous years working at that company. Pflantzer only worked one tour at Uncle Sam’s during the first quarter, so it was estimated that he earned $60 in wages and $50 in tips for that one tour (Tr. 165–167). Kurtzleben testified that net backpay is the gross backpay less interim earnings, which she calculated on a quarterly basis from January 1, 2012, to March 31, 2018, as $92, 474 (GC Exh. 1- JJ(c)). In addition, Kurtzleben noted that Pflantzer would be en- titled to the daily compound interest accruing on the backpay amount and the excess tax liability on the backpay because Pflantzer would have a tax liability ($4657) on the lump sum backpay award as oppose if he had paid taxes when he earned his pay during the course of the backpay period. Kurtzleben’s calculation of Pflantzer’s excess tax was based upon his rates and taxes with the IRS and New York State for each given year. Of course, Pflantzer would be liable for the incremental taxes on the excess tax liability ($6656) (Tr. 169, 170; GC Exh. 1(JJ)).14 Discussions and Analysis A. Backpay Calculations were Reasonable and Appropriate for Computation of the Backpay Award With respect to the use of various backpay formulas, the Board does not need to obtain a perfect calculation; but needs only to use a reasonable formula that would have a probability of determining the lost earnings of discriminates. American Ar- mored Card, Ltd., 342 NLRB 528 (2004). In NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963), the Court stated inter alia Obviously, in many cases it is difficult for the Board to deter- mine precisely the amount of back pay, which should be decided by the Board and rejected it (New York Party Shuttle, LLC., above). No further discussion of this nonmeritorious claim is necessary. NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 9 awarded to an employee. In such circumstances the Board may use as close approximations as possible, and may adopt formu- las reasonably designed to produce such approximations . . . . We have held that with respect to the formula for arriving at back pay rates or amounts which the Board may deem neces- sary to devise in a particular situation, “our inquiry may ordi- narily go no further than to be satisfied that the method selected cannot be declared to be arbitrary or unreasonable in the cir- cumstances involved.” [Case citations omitted.] Kurtzleben testified that the backpay award started on Febru- ary 12, 2012, through the present time. The Respondents ques- tioned Kurtzleben on her method in calculating the backpay and the use of Edwin Jorge as a comparator. The Respondents raise several areas in attacking Kurtzleben’s methodology in calculat- ing the backpay award and using Jorge as a comparator in the calculations. Kurtzleben does not dispute the Respondents’ con- tention that she did not have any documentary evidence to show the number of tours Pflantzer worked while at GONY, Open Tours or any other subsequent employers. The number of tours and hours worked by Pflantzer at the other companies were based upon his representations to Kurtzleben. It is also clear that there were inconsistencies in the Pflantzer’s testimony as to his interim earnings that were not reflected in his tax returns. For example, inconsistencies in Pflantzer’s testimony included the tip amounts he had received from his employers and not men- tioning other employers, such as Maxim, HQ, Uncle Sam’s, and New York Water Tours, to Kurtzleben where he had earned wages. On this point, I would also note that Pflantzer testified on cross-examination that his earnings from Maxim and HQ were mistakenly included in his gross business income (as op- posed to wages), which was reflected in his tax return for 2015 and considered by Kurtzleben (Tr. 156–160). I find that Kurtzleben’s backpay calculation was reasonable and attempted to capture the interim earnings under trying cir- cumstances of uncorroborated testimony, lack of documentary evidence and faulty memory. I agree with the counsel for the General Counsel that Pflantzer’s poor record keeping or uncer- tainty as to memory do not automatically disqualify him from receiving backpay. Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966). B. Edwin Jorge is a Valid Comparator Employee I also credit Kurtzleben’s justification of her use of a compar- ator employee in calculating the backpay award. Kurtzleben un- derstood that the tour guide business was seasonal work and she needed to reflect the changes in hours that occur throughout the year, as opposed to other types of work, such as factory work, where there is a steady number of hours of work per week. She stated that is the reason for using comparator employee method to reflect the slow and busy hours of a seasonal business (Tr. 192, 196). The comparator employee was used to determine the av- erage number of hours worked because Pflantzer had only worked from mid-October 2011 to mid-February 2012 at NYPS (Tr. 147, 192, 296). Kurtzleben decided to use Edwin Jorge as a comparator (Tr. 197) because 15 For example, Pflantzer’s 2012 tax return (GC Exh. 3(A) showed no income from NYPS, although he recalled receiving a W-2 from He had hours similar on average to Fred Pflantzer, but then also had hours spanning across all the payroll data we had. So that’s why I chose (that) Jorge. In contrast, Fred Moskowitz, former president of NYPS, tes- tified that Jorge was not a good comparator because he had more seniority than Pflantzer, was bilingual and an asset with Spanish- speaking tourists, he was outstanding and a reliable tour guide and therefore, he would have received more tours than Pflantzer (Tr. 1707–1708). However, Moskowitz also admitted that Jorge did not work nights, so he had less hours during the even- ing/nights holiday tours than Pflantzer (Tr. 1708). Kurtzleben had used the payroll data provided by Respondent NYPS to determine the hours worked by Jorge (GC Exh. 2(A)- (D)). Kurtzleben noted that she used Pflantzer’s hourly rate of $20 and not Jorge’s rate, which was $2 more (Tr.189). Kurtz- leben also noted that Pflantzer had no work at NYPS from Janu- ary 1 to February 12, 2012. When questioned that Jorge worked and Pflantzer did not during this time period, Kurtzleben credi- bly responded that the comparator employee method is for aver- age hours and wanted to use this method throughout the backpay period, rather than to “. . . switch up the method because that would be inconsistent” (Tr. 212, 213). Indeed, as pointed out by the Respondents, there may be oc- casions when the comparator may have worked and Pflantzer did not work (Tr. 209).15 At the same time, the reverse would be equally true that Jorge was not working while Pflantzer did work. However, those situations would be rare since NYPS had em- ployed over 30 tour guides and there was nothing meritoriously suggested by the Respondents that Pflantzer would have only gotten half the hours worked by Jorge or that Pflantzer did not work when Jorge worked. The Respondents also suggest that Jorge received larger bonuses or had worked more tours because of his seniority; was a better tour guide; or had a special niche with the Spanish-speaking only tourists (Tr. 1829, 1917). Initially, I would note, as the Respondents pointed out in the cross-examination of Pflantzer, that Jorge had worked more hours than Pflantzer on some weeks. Pflantzer agreed that he had 23.5 hours for pay period October 15, 2011, while Jorge had 51.5 hours for the same week. Pflantzer also agreed that he had 36.75 work hours for pay period ending October 29, 2011, while Jorge at 46.5 work hours. However, correspondently, the same records showed that on another week, Pflantzer had 44 hours worked while Jorge had 35 hours (Tr. 1646–1651; GC Exh. 2(A) (B); R. Exh. 10). Using the comparator model is not an exact science in deter- mining backpay awards. It is only an average. But, absent an alternative method to calculate backpay proffered by the Re- spondents, the use of a comparator employee is the best method to address the average hours worked during seasonal changes in the tour industry. While the Respondents did not directly chal- lenge the comparator employee model, they did assert that Jorge NYPS. Pflantzer also had no work NYPS work in January 2012 while Jorge was working (Tr. 1652–1655). 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was not the best comparator.16 However, the Respondents did not offer its own set of comparable employees nor did they cal- culate the earnings for such a set of comparators. As no alterna- tive has been offered, my analysis is necessarily limited to a re- view of the reasonableness and appropriateness of the choice made by the compliance officer in calculating the amount that Pflantzer would have been expected to earn if he had been re- tained on the payroll. As the Board explained in Parts Deport, Inc., 348 NLRB 152, 153 (2006), enf. 260 Fed. Appx. 607 (4th Cir. 2008), “it is the General Counsel’s burden to establish gross backpay amounts that are reasonable and not arbitrary.” In evaluating the General Counsel’s approach, I begin by not- ing that the underlying methodology chosen is one that is regu- larly employed by the Board. In fact, it is listed as one of three “basic methods” in the Casehandling Manual, Part Three, Sec. 10540.1. Sec. 10540.3 of the manual outlines the entire process, noting that, with this approach, backpay is calculated based on the actual earnings of “another employee or group of employees, whose work, earnings, and other conditions of employment were comparable to those of the discriminatee both before and after the unlawful action.” The manual’s approach is consistent with the Board’s juris- prudence regarding the use of comparable employees. As the Board once explained, “[w]e find no merit in the Respondent’s general attack on the comparable employee formula and adopt the judge’s finding that the comparable or representative em- ployee approach is an accepted methodology, and appropriate here.” See, Performance Friction Corp., 335 NLRB 1117 (2001). With respect to the use of various backpay formulas, the Board does not need to obtain a perfect calculation; but needs only to use a reasonable formula that would have a probability of determining the lost earnings of discriminates. NLRB v. Brown & Root, Inc., above. I agree with Kurtzleben that Edwin Jorge was the most viable of the NYPS tour guides to use as a comparator for backpay pur- poses. A review of the payroll record (GC Exh. 2(A)-(D)) show Jorge as a viable comparator employee with similar hours as Pflantzer before his discharge. As Kurtzleben testified, Jorge’s work hours were similar to Pflantzer during the period of Octo- ber 2011 to October 2014. Kurtzleben based Pflantzer’s gross backpay on Jorge’s weekly hours multiplied by Pflantzer’s hourly rate for the period of February 12, 2012, through October 20, 2014. Because there were no payroll records provided the Respondent NYPS after October 20, 2014, Kurtzleben utilized Jorge’s work hours between October 2013 through October 20, 2014, and applied those hours and for each subsequent year to Pflantzer. Kurtzleben also calculated bonuses for Pflantzer when Jorge received a bonus. The Respondents presented two significant counter-argu- ments for not using Jorge as a comparator. First, they assert that Pflantzer never worked between January 1, 2012, and February 16 Indeed, while arguing that Jorge was not a valid comparator, the Respondents simultaneously urged that I should accept that Pflantzer worked only 71 percent of comparator Jorge’s hours while they were both working at NYPS and apply that reduction to gross backpay (R. Br. at 12). Obviously, the Respondents did not proffer an alternative method 12, 2012, but Jorge did work during that time and, second, the Respondents argue that it is unreasonable to use Jorge’s hours from October 2013 to September 2014 and apply those same hours to Pflantzer’s entire backpay period from October 2014 through 2018 (R. Br. at 12). First, it is pure speculation that Pflantzer would consistently not have worked from January 1 to February 12, 2012. Admit- tedly, while this is a slow period for the tourist industry in the New York City area, it does not mean that Pflantzer would have never worked any hours during that period or that only Jorge worked to the detriment of Pflantzer. I note that NYPS consist- ently have over 30 tour guides on its payroll and there is no rea- son why Pflantzer could not have worked those weeks for each year after 2012. In addition, as I noted in the hearing record, Kurtzleben’s calculation in using Jorge’s work hours is an aver- age and not exact (Tr. 184–185). Second, while it seems unfair to Respondent NYPS that Kurtzleben used Jorge’s work hours for the last complete year (October 2013-2014) and applied those earnings through 2018 when NYPS was closing its operations by 2014, it is reminded that it was Respondent NYPS that violated the Act when it twice discharged Pflantzer and it is grossly more unfair that Pflantzer has not been remedied for the unlawful discharges. Further, the Respondents has also not shown with any credible evidence other than the testimony of Schmidt and Moskowitz that bonuses or work hours offered to Jorge were somehow based upon Jorge’s seniority, foreign language skills or expertise as a tour guide. NYPS proffered no company policy that perfor- mance factors were used in awarding bonuses or that work was based upon seniority or language skills of a tour guide. C. Pflantzer’s Representation of his Tips was Reasonable and Appropriate The Respondents argue that there is “zero documentary evi- dence to support” for the amount of tips calculated by Kurtz- leben. Kurtzleben does not dispute that her inclusion of Pflantzer’s tips for his services on the various tours was based upon Pflantzer’s representations to her as to the tips he earned. Kurtzleben testified that it was customary for a NLRB compli- ance officer to base calculating back pay, including the unre- ported tips, on the oral conversations with the discriminatee (Tr. 296). Kurtzleben noted that Pflantzer’s tips were not included in his tax returns but I find that she correctly ensured that the tips were captured in the backpay calculation (Tr. 176, 177, 297). When questioned why it would be reasonable to include the tips in the backpay calculations when the tips were not evident in Pflantzer’s tax returns (or anywhere else), Kurtzleben replied be- cause it would be unreasonable not to include the tips (Tr. 180): I think so, because generally, as a tour guide, you earn tips, and he earned tips at his interim employers. He reported to me that he earned tips at New York Party Shuttle, and I think it would to calculate backpay but only sought to object that Jorge was a valid comparator in calculating backpay. The Respondents did not proffer an- other comparator employee at NYPS that they believe would be more align with Pflantzer’s work hours. NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 11 be less reasonable for me not to include them in the calculation since he reported to me that he was earning them. It is a well-settled principle that, where there has been a find- ing of an unfair labor practice, and back pay is owed, it is the back pay claimant that “should receive the benefit of any doubt rather than the Respondent.” Hacienda Hotel & Casino, 279 NLRB 601, 603 (1986). However, this presumption in favor of the employee has proven to be difficult to implement where the employee has failed to accurately report their tip income to the Internal Reve- nue Service (IRS) during the backpay period. While the presence of unclean hands in a backpay determination may complicate matters, the Board has held that “that an admission of underre- porting tips to the Internal Revenue Service (IRS) does not pre- clude such tips from being considered and included in a backpay award.” Atlantic Limousine, Inc., 328 NLRB 257, 258 (1999). The Board has reasoned that precluding tip income on the basis of an employee’s accuracy in completing tax returns would frus- trate the purpose of the Act, as it would allow the wrongdoer to benefit. Id. While it is clear that a discriminatee that has inaccurately re- ported or failed to report tip income on their Federal income taxes is still entitled to a backpay award that reflects this tip in- come, the law is less definitive on how these tips should be fac- tored into the final calculation. In some situations, great defer- ence is given to the testimony of the discriminatee, even if this evidence is entirely uncorroborated. In Harran Transportation Co., Inc. and John Cantidate, 330 NLRB 369 (1999), the Board affirmed the administrative Law Judge’s finding of $180 in weekly tips, which was calculated entirely from the discrimi- natee’s own statements. The judge reasoned that the witness was credible and that the testimony appealed to common sense. Id. at 373. The judge found that even though the discriminatee’s tes- timony was made in contradiction to information he had given to governmental authorities, it was a reasonable approximation. Id. The rationale for such an approach lies in the fact that discrimi- natees’ are aware that they were testifying under oath and that their statements are a matter of public record that could subject them to possible prosecution and penalties for failing to report their full income to the IRS. Lee Hotel Corp., 306 NLRB 857, 860 (1992). Thus, not only is the discriminatees’ own testimony a good starting point for determining whether a gross back pay formula is appropriate, it may in some cases be the only point of reference. Based on prevailing precedent, Pflantzer is entitled to a back- pay calculation that includes tip income notwithstanding the fact that he failed to disclose this income on his Federal tax returns and he was the only source for the dollar amount of tips received. The Board in such situations has taken a position of leniency and has found that it is better for the Treasury to deal with such is- sues. Further, it appears that where it is impossible to ascertain the exact tip amounts, the Board will still give great weight to the discriminatee testimony on the matter where the amount seems like a reasonable approximation. The Respondents argued that there is no basis for Kurtzleben 17 Pflantzer testified” “No. That’s not quite correct. The $40 I would give him was not from tip that I collected. That was what I gave him from to take the Pflantzer’s representation that he earned a range of $25 to $50 per tour at NYPS and that her use of a midpoint amount of $35 tip per tour grossly overestimated his earnings if Pflantzer had only received $25 per tour. However, the Re- spondents have not proffered an alternative method of calculat- ing Pflantzer’s tips. The Respondents may contend that Pflantzer received more tips than he told the NLRB or that it was unreasonable for him to give all or part of his tips to the bus driver or, perhaps, Pflantzer received no tips when he said he did. In my opinion, it is pure speculation as to whether Pflantzer would have only re- ceived $25 per tour as represented by the Respondents since that amount is equally uncorroborated as the testimony provided by Pflantzer as to tips earned. Also, it may be true that Pflantzer earned $50 in each tour. However, I find that Kurtzleben appro- priately took the high monetary amount of Pflantzer’s represen- tation of his tip and use the midpoint of the $25 to $50 range so as to not allow Pflantzer to fully benefit from not reporting his tips to the IRS. The midpoint methodology in calculating Pflantzer’s tips also addresses Respondents’ contentions that Pflantzer made more tips as a NYST guide but he chose to give a fixed amount of $40 to his bus driver before the tour started (R. Br. at 10).17 Although Pflantzer testified that his policy was $40 for the driver (which is technically a business expense), he also testified that his amount of tips after the tour was $45 and he sometimes received $60 in tips and on other occasions, only $20 (Tr. 1439). Consequently, by appropriately using a midpoint amount of $35, Kurtzleben was able to average out the high and low amounts. D. Pflantzer’s Moonlighting Business was Appropriately Ex- cluded from Interim Earnings The compliance officer calculated Pflantzer’s earnings from his own company, NYST, from the tours he conducted on week- ends. As mentioned, Pflantzer only worked for his own com- pany on Saturdays during the time he was employed by Re- spondent NYPS. Pflantzer conducted one tour for NYST. The question is whether his earnings of $335 is from “moonlighting” and was properly excluded from his interim earnings. In my opinion, it is appropriate to exclude from interim earn- ings that portion which reflects earnings from a job held prior to Pflantzer’s discharge. The law is settled that moneys earned dur- ing the period of discrimination from a supplemental job which a discriminatee also held during his or her employment with a respondent employer are not deductible from gross backpay as interim earnings. See, Rice Lake Creamery Co., 151 NLRB 1113, 1114 fn. 4 (1965); also, Kansas Refined Helium Co., above. In the instant case, prior to his unlawful discharge, Pflantzer earned supplemental self-employment income from the operation of NYST during his nonworking hours and Kurtzleben appropriately excluded the amount of $335 from his interim earnings. I find that the amount calculated as Pflantzer’s moonlighting business was reasonable. As noted above, Kurtzleben totaled the combined earnings at NYST for 2012, 2013, and 2014 as my pocket. Prior to the tour starting I would pay them and then whatever I collected in tips would be mine (Tr. 1439). 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reported in Pflantzer’s tax returns and divided that figure by the estimated tours told to her. Kurtzleben added $5 in tip to that amount, arriving at $335. While this amount is only an estimate, it would make sense to me to use this method. The Compliance Officer Appropriately Relied on Pflantzer’s Tax Returns Kurtzleben relied on Pflantzer’s tax returns and the infor- mation provided to her in several investigatory interviews. I find this method of calculating interim earning as reasonable and ap- propriate. The Respondents contend that the actual tax returns filed by Pflantzer may reflect different income and earnings because the compliance officer only used the tax return transcripts and the TurboTax software in some years, like for 2012 and 2017. The Respondents argued that having the actual tax returns would show discrepancies in the compliance officer’s reliance on the tax return transcripts and the tax software. During the hearing, Respondent request approval from me for a subpoena of Pflantzer’s New York State tax returns and for the actual Federal tax returns. I approved the subpoena over the opposition of the counsel for the General Counsel (Tr. 605–621). Upon submis- sion of the subpoena tax documents into the record and upon re- view of those documents, I find little or no inconsistency be- tween the Federal and state tax returns (compared R. Exhs. 9(a)- (g) and GC Exhs. 3(a)-(f)). I find no reason to disturb the proper calculation of Pflantzer’s net interim earnings by the compliance officer that was based upon Pflantzer’s tax returns and the adjustments made by Kurtz- leben based upon her investigative interviews of him on those returns. For example, the Respondents note that Pflantzer testi- fied that his company’s use of Groupons went full stream in 2013, but his tax return shows that his company generated the most revenue from Groupons in 2012 (R. Br. at 2). Pflantzer stated that 2013 was NOT the year of the Groupon when he was operating his own business (Tr. 1597). While Pflantzer’s memory may be faulted from events that happened over 6 years ago, his tax returns properly included his business earnings for 2012 as over $165,000.00 (with the use of Groupons) that was reflected in his earnings and taken into con- sideration by the compliance officer. So, while Pflantzer may have been mistaken as to the year of the Groupons, the interim earnings generated by his business were nevertheless reflected in the backpay calculations. The Board has long recognized the value of utilizing social security records and income tax returns in determining interim income, and has found that “poor recordkeeping, uncertainty as to memory, and perhaps exaggeration” do not automatically dis- qualify an employee from receiving backpay. Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966), enfd. 395 F.2d 241 (1st Cir. 1968). Through the use of Pflantzer’s income tax returns, and additional evidence adduced at the hearing, it is possible to arrive at a “reasonable approximation” of interim earnings, which is all that the Board and Courts require. Further, I find that the Re- spondents have not shown that Pflantzer deliberately withheld or 18 I note that bank statements were not used by the compliance of- ficer’s calculation of backpay (Tr. 1645). Consequently, the Respond- ents’ demand for Pflantzer’s bank records is not relevant and, in any destroyed records to prevent a review by the Respondents or to deceive the Board. In Bagel Bakers Council of Greater New York and its Employer Members, 226 NLRB 622, 626 (1976), the Administrative Law Judge, affirmed by the Board, noted that the lapse of time between the backpay period and current pro- ceeding necessarily had the effect of limiting the evidence and memory available. I also note that some of the limitation in the evidence was due to the significant lapse in time in the Respond- ents’ refusal to comply with Board orders. See, W. C. Nabors Co., 134 NLRB 1078 fn. 3 (1961) (where the Board noted a delay attributable to respondent’s refusal to comply with the Board’s Order as enforced by the court of appeals until contempt pro- ceedings were commenced).18 E. Pflantzer’s Self-Employment Earnings were Appropriately Considered As is set forth above, a portion of Pflantzer’s earnings during the backpay period came from self-employment, which the Sec- ond Circuit Court of Appeals held in Heinrich Motors, Inc. v. NLRB, 403 F.2d 145, 148 (1968), “is an adequate and a proper way for an employee to attempt to mitigate his loss of wages. Self-employment should be treated like any other interim em- ployment in measuring backpay liability.” Further, contrary to the Respondents’ assertions that Pflantzer could have had more earnings if not for the time he spent on his own company, “the principle of mitigation of damages does not require success; it only requires an honest good-faith effort.” NLRB v. Cashman Auto Co. and Red Cab Co., 223 F.2d 832, 836 (1st Cir, 1955); See also, Lloyd’s Ornamental and Steel Fabricators, Inc., 211 NLRB 217 (1974). Kurtzleben testified that she offset interim expenses in com- puting interim earnings from Pflantzer’s self-employment. In calculating that portion of the time Pflantzer had interim earn- ings, Kurtzleben used his Federal tax returns (Schedule C) to de- termine both his earnings and his operating expenses. The cor- rect method for calculating backpay when an employee has been engaged in self-employment is to offset the backpay owed with the net earnings (the profits) of the newly formed business as opposed to using gross income. This is a standard method in calculating interim earnings from self-employment. NLRB Casehandling Manual, Part Three, Compliance Proceedings, Section 10541.3. When there are no profits found from the busi- ness of the employee there is no value to offset the backpay that is awarded to the employee. NLRB Casehandling Manual, Part 3, Compliance Proceedings, Section 10552.3 In Re California Gas Transport, 355 NLRB 465, 468. (2010), the Board held what has been the proper method in calculating damages. The principle issue was the correct amount of interim earnings to be used to offset against gross backpay owed to the discriminatees. Id. The Board rejected respondent’s argument that since the board used gross income to determine gross back- pay that gross income (gross receipts without expenses) should be used to determining the interim earnings of the employees to offset the backpay owed. Id. The Board held that the appropriate event, the Respondents had an opportunity to subpoena Pflantzer’s bank records but did not. NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 13 measurement for measuring an employee’s earnings during the interim period is their net earnings when engaged in self-employ- ment. So, the correct formula when using a business’s value is to use gross revenue minus expenses, which is known as the net earnings. I find that the application of this standard method in calculat- ing interim earnings for self-employment by the compliance of- ficer as appropriate. Velocity Express, Inc., 342 NLRB 888 (2004). For each year, Kurtzleben calculated interim earnings from self-employment using Pflantzer’s tax returns and his an- swers to her investigatory inquiries. Indeed, Kurtzleben did not merely accept the information on the tax returns provided by Pflantzer for 2016 and 2017. Kurtzleben testified that there were 2 Schedule Cs in 2016 and 2017. Kurtzleben determined to use one Schedule C for business profit and loss and the second Schedule C solely as income with no corresponding offset of business expense. In 2016, Kurtzleben took the higher gross re- ceipts from the two Schedule Cs ($19,535) as income without deducting any business expenses. Kurtzleben did the same in 2017. As a consequence, Pflantzer’s interim earnings were greater in 2016 and 2017 without the offset for business ex- penses. In my opinion, this show that the compliance officer was conscientiously adjusting the standard model when calculat- ing self-employment earnings to meet the unique situations in 2016 and 2017. F. Pflantzer’s Efforts to Search for Work was Reasonable Longstanding remedial principles establish that backpay is not available to a discriminatee who has failed to seek interim em- ployment and thus incurred a willful loss of earnings. St. George Warehouse, 351 NLRB 961, 963 (2007) (citing Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941); NLRB v. Mastro Plas- tics Corp., 354 F.2d, 170, 175 (2d Cir. 1965)). A claim that a discriminatee did not make reasonable efforts to find interim em- ployment, and thus failed to mitigate damages, is an affirmative defense for which the employer bears the ultimate burden of proof. St. George Warehouse, 351 NLRB 961, 961 (2007). The Board has noted that “[t]he term ‘burden of proof’ typically en- compasses two separate burdens: (1) producing evidence, satis- factory to the trier of fact, of a particular fact at issue—referred to as the “burden of production;” and (2) the burden of persuad- ing the trier of fact that the alleged fact is true—referred to as “the burden of persuasion.” Id at 963. In St. George Warehouse, the Board set forth a burden shifting standard regarding the issue of mitigation, noting that “[t]he contention that a discriminate has failed to make a reasonable search for work generally has two elements: (1) there were substantially equivalent jobs within the relevant geographic area,23 and (2) the discriminate unrea- sonably failed to apply for these jobs.” 351 NLRB at 961. The respondent-employer has the burden of going forward with evi- dence to show that there were substantially equivalent jobs within the geographic area. Id. If the respondent satisfies this burden, then “the burden shifts to the General Counsel to pro- duce competent evidence of the reasonableness of the discrimi- natee’s job search.” Id at 967. The General Counsel may meet this burden by producing the discriminatee to testify as to his efforts at seeking employment, or by introducing other competent evidence regarding the discriminatee’s job search. In St. George Warehouse, the Board “modif[ied] the principles governing the issue of willful loss of earnings in one respect only.” Id. at 964. “When a respondent raises a job search defense to its backpay liability and produces evidence that there were substantially equivalent jobs in the rel- evant geographic area available for the discriminatee during the backpay period . . . the General Counsel [has] the burden of pro- ducing evidence concerning the discriminatee’s job search.” Id. at 964. Regarding a discriminatee’s job search, in trying to secure comparable employment, a wrongfully discharged “worker is not held to the highest standard of diligence.” Atlantic Limou- sine, Inc. v. NLRB, 243 F.3d 711, 721 (3d Cir. 2001). Instead, “reasonable exertions” are sufficient. Id. The Board did not make any changes to the ultimate burden of persuasion on the issue of a discriminatee’s failure to mitigate; “the burden remains on the respondent to prove that the discriminatee did not mitigate his damages ‘by using reasonable diligence in seeking alternate em- ployment.’” Id. at 964 (citing Mastro Plastics, 354 F.2d 170, 175 (2d Cir. 1965) The Respondents assert that Pflantzer is entitled to no back- pay, because among other things, he failed to mitigate damages throughout the backpay period February 2012 through mid-2014 by seeking employment as a tour guide, but instead, he decided to engage in self-employment or reject job offers not to his liking (R. Br. at 5). Applying the burden-shifting framework set forth in St. George Warehouse, I find that the credible evidence shows oth- erwise. Respondent has failed to satisfy its ultimate burden of showing that Pflantzer failed to mitigate damages. Respondent met its initial burden by presenting “evidence that there were substantially equivalent jobs within the relevant geographic area available for [McCallum] during the backpay period.” St. George Warehouse, 351 NLRB at 964. As such, the burden shifted to the General Counsel to produce competent evidence showing the reasonableness of Pflantzer’s job search. Pflantzer worked at GONY starting on July 4, 2014, until he was discharged about January 16, 2015. His employment with GONY ended with a NLRB charge and a settlement of that charge in 2015. After his discharge from GONY, Pflantzer made several attempts to seek employment. He contacted Real New York Tours; he interviewed for a guide position on a boat tour called Circle Line, which he did a couple of tours hoping to be hired, but was not; he attended an open house for Big Bus Tours; use his colleagues and associates in the tour industry for potential job offers; search for tour jobs on Craigslist and Trip Advisor; and pursued other avenues of employment without real success (Tr. 1285–1303, 1351–1359). Pflantzer was briefly employed by USA Guided Tours for 3 months (1st quarter of 2015) and conducted 2–3 bus tours per week at 5–6 hours per tour. He stopped working with Guided Tours after one of his payroll checks was not honored by his bank Pflantzer testified that he would not work in a company that had not honored his paycheck (Tr. 1249–1253, 1311). I find this to be a reasonable concern for Pflantzer to not work for that com- pany. Pflantzer worked with a start-up tour company named High Quality (HQ) in late 2014 and early 2015 on an intermittently 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD basis. He was hired on a “as needed” basis (Tr. 1350, 1351). Pflantzer also worked as a tour guide for Uncle Sam’s in 2015, but it could have been in 2016 (Tr. 1343). He conducted only walking tours. He recalled working at Uncle Sam’s through De- cember 31, 2017. He worked 2 or 3 tours per week, usually about 2 hours per tour. Pflantzer is still employed with Uncle Sam’s at the time of the trial (Tr. 1309). Pflantzer worked briefly for a tour group called Open Loop/RSDL in summer 2015 (Tr. 1343, 1344). Pflantzer also worked for Maxim during summer 2015 and conducted 5 or 6 guided tours. Pflantzer testified to the seasonal nature of the tour industry and said there was very few tours after Christmas until St. Pat- rick’s Day. He said that from March to Christmas is the busiest time for the tour industry. He stated that during the busy season, he would conduct 2 or 3 tours per week. In addition to Uncle Sam’s, Pflantzer worked at New York Tours One (NYTO), which was also known as the Wall Street Experience (WSE), in 2015 (Tr. 1235, 1389, 1343). He stated that NYTO (aka Wall Street Experience) kept him busy and he spent less time on his own company during this period (Tr. 1364, 1365). Pflantzer continues to work for NYTO after December 31, 2017. In 2017, Pflantzer also worked at One on One Tour, starting on September 11 (Tr. 1244, 1351). This was a bus and walking tour that is scheduled only once a year. Pflantzer con- tinues to work this tour every year since 2017 (Tr. 1310, 1311). Throughout 2016 and 2017, Pflantzer also resumed tours under his own company NYST. He conducted walking and private tours and believed he did 10 walking tours in 2016 until he started to work for NYTO (Wall Street Experience) in May, where he spent most of his work time (Tr. 1278, 1279, 1445). I find that the General Counsel met the burden of producing evidence concerning the discriminatee’s job search. M.D. Miller Trucking & Topsoil, Inc., 365 NLRB No. 57 (2017). The evi- dence presented by the counsel for the General Counsel showed that Pflantzer was actively engaged in searching for work and did work after his 2012 and 2014 discharges. Although, Pflantzer focused on his own self-employment, the record shows through his testimony and tax returns, that Pflantzer had miti- gated the amount of backpay through his active search to in- crease his interim earnings. Findings and Conclusions on Single Employer, Alter Ego and/or Golden State Successor The counsel for the General Counsel alleges that New York Party Shuttle (NYPS), Washington DC Party Shuttle (WDCPS), Party Shuttle Tours (PST), OnBoard Las Vegas (OBLV) and New York City Guided Tours (NYCGT) are a single employer. It is further contended by the General Counsel that NYCGT is 19 On May 31, 2018, the counsel for the General Counsel moved to amend the caption and paragraph six of the amended compliance speci- fication. After providing the Respondents an opportunity to respond, I granted the motion of the General Counsel to amend, specifically to al- lege that NYCGT is an alter ego and/or a Golden State successor to NYPS (GC Exh. 1(RR). 20 In its answers, the Respondents dispute jurisdiction and/or that they are engaged in commerce. It had already been determined by the Board that New York Party Shuttle, LLC was engaged in commerce within the meaning of the Act. Also, as discussed below, PST owns the majority an alter ego to NYPS and/or that NYCGT is a Golden State suc- cessor to NYPS.19 Extensive testimony and evidence was taken as to the inter-relationship among the companies by the counsel for the General Counsel to establish single employer, alter ego and/or successorship relationship. This was necessary because NYPS, although not formally dissolved, no longer has any valu- able assets to remedy a backpay award to Pflantzer.20 At the same time, the Respondents deny that they operated as a single employer or that NYCGT is an alter ego to NYPS and/or a suc- cessor to NYPS.21 I. INTER-RELATIONSHIP AMONG NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, ONBOARD LAS VEGAS TOURS, LLC, D/B/A ONBOARD TOURS, NYC GUIDED TOURS, LLC, AND PARTY SHUTTLE TOURS, LLC, a. Party Shuttle Tours, LLC, d/b/a OnBoard Tours Party Shuttle Tours, LLC (PST) was incorporated on Decem- ber 19, 2006. Charles Thomas Schmidt (Schmidt) is one of three managing members and designated CEO of PST since its incep- tion in 20016 (GC Exh. 45; Tr. 100, 101, 338, 339). The PST prospectus in May 2012 states that PST is doing business as (d/b/a) OnBoard Tours. Schmidt explained that PST created the OnBoard tours brand, which then licensed the intellectual prop- erty of the brand to Washington DC Party Shuttle, LLC (DCPS); New York City Guided Tours, LLC (NYCGT); OnBoard Las Vegas Tours, LLC (OBLV); and other entities, including NYPS (Tr. 364). The 2012 PST prospectus had plans to expand into Las Vegas as OnBoard Las Vegas (OBLV) as well as in NYC, DC, San Francisco, New Orleans, Chicago, Boston, and several other cities. PST d/b/a OnBoard Tours represented to the inves- tors that it has offices in New York City as OnBoard New York, in Washington DC as OnBoardWashington DC and OnBoard Tours in Houston Texas. The websites listed in the PST prospec- tus included, among others, onboardlasvegastours.com; wash- ingtonpartyshuttle.com; newyorkpartyschuttle.com; and onboardtours.com (GC Exh. 49(A)). The OnBoard website listed the tours conducted by NYPS, DCPS and OBLV with spe- cific timeframes and schedules for the tours. Customers may se- lect the tours for any of the three cities linked to the OnBoard website (GC Exh. 163). The amendment to the May 2012 prospectus noted that PST is the holding company for NYPS, DCPS, Baltimore Party Shut- tle, OnBoard America Tours, OBLV, and among others. Schmidt is listed as Manager, Chair and CEO, Shawn Mengel (Mengel) as vice-president of operations. Mengel is further identified as the managing director of OBLV effective 2011 and was promoted to vice-president of operations of OBLV in share of NYPS and DCPS and is the sole owner of OBLV and NYCGT. Each Respondent has transferred over $50,000 annually to each other and each company are in 3 different states and the District of Columbia. The Respondents’ gross and combined revenue is expected to exceed $10 million dollars in 2017 (GC Exh. 51). As such, I find that the Respond- ents are engaged in commerce and within the retail jurisdiction under the Act. 21 Charles Thomas Schmidt represented New York Party Shuttle. James M. Felix represented the remaining Respondents (Tr. 7). NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 15 January 2012. Jerry Abshire is listed as vice-president of sales and marketing (GC Exh. 49(B) at 001205, 0001296). The PST prospectus supplement and amendments to its pro- spectus in March 1 and August 1, 2017 stated PST is the holding company for NYPS, DCPS, OBLV, NYGCT, Creativerse Inter- net System, Baltimore Party Shuttle, LLC, OnBoard America Tours, LLC, and City Info Experts, LLC. As the holding com- pany, PST owns 100 percent of OBLV; 98.87 percent of DCPS; and, 92.46 percent of NYPS. NYCGT and OBLV are wholly owned by PST (GC Exhs. 48, 51). The remaining 9.5 percent of NYPS is owned by Mark D’Andrea, who also has 1.13 percent ownership of DCPS (Tr. 346–348). Schmidt testified that he believed the PST 2017 prospectus (GC Exh. 51) was just a draft even though it had updated infor- mation from the 2012 prospectus. He insisted that the $10 mil- lion-dollar revenue generated by PST was “just an expectation” (Tr. 632–636). PST is partially owned by Infinity Trade Capital, LLC at 70.79 percent in March 31, 2013. Schmidt owns almost 70 percent in Infinity Trade Capital, LLC. Charles Fridge is the other owner at 30.56 percent (Tr. 342–344). 41 other individuals own 5 per- cent or less with 3 owning at least 15 percent in PST (Tr. 345– 346; GC Exh. 44). The PST 2012 prospectus confirmed that In- finity Trade Capital, LLC owned 80.70 percent of PST as of May 15, 2012, and Schmidt as an individual, owned .07 percentof PST (GC Exh. 44(B)). Schmidt testified that PST never hired any tour guides (Tr. 532). Schmidt also denied that he is involved in day to day op- erations of any of the companies owned by PST (Tr. 353). b. OnBoard Las Vegas Tours, LLC, d/b/a OnBoard Tours Schmidt is also the CEO of OnBoard Las Vegas Tours (OBLV) since 2011 (Tr. 89). OBLV was approved as a limited- liability company by the State of Nevada about January 2011 (GC Exh. 57). Schmidt identified Mengel as the director of op- erations for OBLV and stated that Mengel was terminated at OBLV but hired in a similar position by DCPS in mid-2016. Mengel was replaced by Paul Rosenthal as managing director at OBLV and held this position until OBLV stopped operations in early 2018 (Tr. 90, 91). Rosenthal was eventually replaced at OBLV by Nathan Waldschmidt (Tr. 541, 541). Schmidt testified that Mengel was also an investor with “some money” in PST, but really didn’t recall. He said that Mengel worked for 2 years in OBLV and was then moved to DCPS for about one year. He said that Mengel was moved to DC because Schmidt needed a salesperson for OBLV. He said that Rosenthal was hired to generate sales in Las Vegas. Schmidt believe that Mengel may have had a role in hiring Rosenthal (Tr. 586, 597). Schmidt said that Mengel did not want to leave Las Vegas but ended up going when Tyree Cook (below), as the managing di- rector of DCPS, left the company (Tr. 583–584). OBLV was engaged initially to conduct bus tours. Credible testimony from Ron White (NYPS supervisor) indicated that a NYPS bus was driven out to Las Vegas by two NYPS employees for use by OBLV. White was not aware of any financial arrange- ment or lease agreement for this transaction. The NYPS was in service in Las Vegas for approximately 1 year when it was driven to Washington, D.C. for use by DCPS. OBLV was unable to continue conducting bus tours because either the State of Nevada or Las Vegas prohibited the use of buses for tours. Documents subpoenaed by the counsel for the General Coun- sel reveal that OBLV had financial transactions with DCPS, PST, OBLV, NYPS, and NYCGT, from January 1, 2012, through January 1, 2017. OBLV would engage in various loan and repayment transactions between itself and the other compa- nies. There is no indication of any loan agreements or fees/in- terest rates associated with these loan transactions (GC Exh. 72; Tr. 651–659). c. Washington DC Party Shuttle, LLC, d/b/a OnBoard Tours Schmidt testified that he is also the CEO for Washington DC Party Shuttle (DCPS). As noted above, PST owns 98.87 percent of DCPC in 2013. He identified Larry Lockhart as the managing director and vice-president of DCPS, who had since left DCPS by 2015 (Tr. 60, 63, 64). DCPS conduct bus tours to various attractions in the Washington D.C. area. DCPS also provided buses to transport customers from designated hotels to the pickup point for the DCPS tours. Lawrence Lockhart was hired by Tyree Cook (Cook). Schmidt insisted he did not want to hire Lockhart but Cook in- sisted and Lockhart was hired as a sales person and later pro- moted to acting managing director and then as a permanent man- ager. Schmidt denied that he had hired Cook (Tr. 357–359). De- spite Schmidt’s alleged reluctance to hire Lockhart, Lockhart is listed as the vice-president of sales and marketing for PST in the August 2017 prospectus (GC Exh. 51 at PST001240). In addi- tion, Schmidt testified that Lockhart was promoted because he resolved problems with picking up customers on time at the ho- tels in order to transport them to the designated location for the tour. Schmidt was involved in making sure the buses arrived on time at the hotels. Schmidt was aware of this issue at DCPS be- cause he intervened on the discipline of a bus driver who was not on time in picking up customers at the DC hotels (Tr. 553–557). As such, I find it clear that Schmidt was instrumental in bringing Lockhart to and promoting him at DCPS. Cook was hired at DCPS in 2008 as a customer service am- bassador at the Gaylord Hotel, located at the National Harbor, MD; to a site supervisor at the Gaylord Hotel; to director of sales in 2009 and then to managing director of DCPS in 2011. Schmidt did not participate but was present when Cook was in- terviewed for the job. Cook was informed that the decision to promote him to the various positions was made by Schmidt alt- hough the interviews were done by his supervisor, “Latoya” (Tr. 1050, 1051, 1093). Cook left DCPS in 2012. Cook was sued by DCPS, PST and Creativerse Internet in March 2012 when Cook and other employees organized a competing tour business in the alleged violation of their non-compete agreements (GC Exh. 25). As managing director of DCPS, Cook understood DCPS was also known as OnBoard Tours. He described OnBoard Tours as DCPS “customer-facing” brand for marketing purposes. He was aware that OnBoard Tours also operated in New York City and Las Vegas during the time he was the managing director of DCPS (Tr. 1048). He believed that OnBoard started operating in Las Vegas as early as 2010. Cook was responsible for the day- to-day operations of DCPS, including managing the staff, sched- ules of the tour guides, bus drivers, interfaced with customers, 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vendors, various hotels. He always reported to Schmidt and be- lieve him to be the CEO and founder of DCPS and PST (Tr. 1045–1051). Lawrence Lockhart testified that DCPS had an of- fice that included an “OnBoardDC.com” sign with a DCPS sign until DCPS physically left that office (Tr. 1543). Cook testified that Schmidt was involved in raises, promo- tions, and discipline. He specifically recalled that a bus driver for DCPS named driver Lattimore was discharged after Cook recommended to Schmidt to discharge her. In other instances, Cook would independently make the decision to discipline. He recalled that a bus driver named “Keith” was suspended for drinking alcohol and subsequently terminated by him. Schmidt was not involved in that discipline (Tr. 1052–1065). On other occasions, Schmidt made the decisions to discipline the DCPS employees. Cook testified that he recommended that employees “Jephree” and “Germaine” be suspended but Schmidt, instead, said to discharge both employees (Tr.1066).22 Both employees were subsequently rehired by Schmidt a few months later (Tr. 1067–1069). Cook testified that he would receive emails from Schmidt that were also sent to Vincent Ford, Ron White, who were managers at NYPS, regarding uniform policies and procedures for DCPS, NYPS, and OBLV. Cook understood that some procedures will be placed in all offices, while some emails may pertain to only one company, but all the managers were nevertheless informed as to what was happening in other companies. He said that Scott Wilson was hired by Schmidt as a consultant for DCPS, but he also ended up as a consultant to NYPS and OBLV (Tr. 1069– 1073). The record substantiates Cook’s testimony, to wit: 1-By email dated April 13, 2011, Schmidt sent out uniform hir- ing and training procedures for “OnBoard Drivers” in New York, D.C., and Las Vegas. The email was directed to Cook, Ron White (NYPS) and others (GC Exh. 85). 2-By email dated July 28, 2011, Schmidt directed an email to Ron White, Cook, Lockhart, Vincent Ford (NYPS) and Men- gel (OBLV) informing everyone some of the problems and is- sues with DCPS. From this email, Schmidt was intimately in- volved in the operations of the DCPS office (GC Exh. 86). 3-By email dated January 9, 2011, Abshire informs Ford and Cook as to a standardized employment application for all OBT (Onboard Tours) employees. Schmidt replied that all should use this employment application for all new hires (GC Exh. 87). 4-By email dated June 18, 2012, Schmidt discussed with Ab- shire, John Cabral (formerly of DCPS), Moskowitz in New York and Mengel in Las Vegas of the need to have uniform company shirts and baseball caps and that there would be no excuse for a guide not to wear a uniformed shirt (GC Exh. 89). 5-By email dated April 24, 2011, Schmidt directly informed all employees at NYPS, DCPS and OBLV that the “company pol- icy” is to have all customer emails responded to within one hour of receipt (GC Exh. 90). 22 Jephree was incorrectly transcribed as “Jafrique” and corrected by the counsel for the General Counsel by motion to correct the transcript on September 18, 2018. Lawrence Lockhart (Lockhart) testified that he was the man- aging director and vice president of sales of DCPS. He was ini- tially hired in 2010 for a sales manager position and took over the sales responsibilities as vice-president of sales in 2013 (Tr. 1527–1530). Lockhart said that Cook was the managing director at the time he was hired, and Cook had Lockhart work on several projects to drum up the DC tour business at several hotels. At the time, Raul Shakir was a co-equal with Lockhart as a sales manager. Their job was to visit hotel concierges and encourage them to sell the DCPS tours. Lockhart helped to start a concierge desk at hotels to provide a source for tour business in the north- west and southwest DC areas (Tr. 1531).23 At the time, there were six hotels with concierge desks and this business model is unique to DCPS. Lockhart said there are no concierge desks in NYC, greater NY areas, Nevada or in Texas. Lockhart is aware of the operations at NYPS. He denied that NYPS and OBLV have concierge desks (Tr. 1536). The money from the sales of the concierge tours goes directly to DCPS. He stated that the hotel concierges receive a commis- sion and an hourly wage in directing business to DCPS. Lock- hart said that hotels with no DCPS concierge desks receive a commission for selling DCPS tours (Tr. 1533). Lockhart did the hiring and training of the concierges and denied that Cook did any of the hiring (Tr. 1533, 1534). Lockhart testified that DCPS conducts bus tours. He notes that some customers are picked up at the hotel while other tour- ists would meet at a centralized location. He said that it was about 50/50 between tourists coming from hotels and those wait- ing to board buses at designated areas. Tourists buying tickets for tours online would wait at a designated area. The hotels that sell the tours to hotel guests will get picked up at the hotel by DCPS buses (Tr. 1537) When Cook left in February 2012, Lockhart took over his du- ties. He was then promoted to managing director the following year. He said that Schmidt promoted him to managing director and when he became vice-president of sales (Tr.1545). In his position, Lockhart insisted that he was solely responsible for hir- ing and firing but did ask for advice from Schmidt who was the CEO of DCPS. Lockhart denied having any authority over NYPS, NYCGT, OBLV or that those companies had any in- volvement in the operations of DCPS (Tr. 1540–1542, 1548, 1549). Schmidt testified that Jerry Abshire, as vice-president of sales and marketing for PST, had some role in hiring concierge sales- persons (one or two) in New York and maybe in Washington D.C. (Tr. 596, 597). The record shows that Lockhart had com- plained that he did not have any concierges and emailed Abshire and Schmidt of his need to hire. By email on July 31, 2012, Lockhart request from Abshire and Schmidt his need to hire sales persons and that he would do the hiring because Abshire was too busy with the candidates he was interviewing for DCPS. The email addresses for Lockhart, Schmidt and Abshire was “onboardtours.com.” Schmidt responded to Lockhart as to how quick Lockhart can start to interview for sales concierges in DC 23 Shakir, the co-sales manager, was terminated in 2010 by Schmidt (Tr. 1543). NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 17 (GC Exh. 83). Also, DCPS creates the daily sales reports that are generated three times per day for DCPS, NYPS and OBLV in the past. Lockhart said that that the sales numbers for DCPS, NYPS and OBLV were obtained through a booking website (Tr. 1547, 1548). He also provided business advice to OBLV to help with the sales and may have also provided sales advice to Moskowitz at NYCGT (Tr. 1553–1555). Lockhart denied that NYPS or OBLV were on conference calls with Schmidt on cashflow is- sues involving DCPS but conceded that Moskowitz (also Paul Rosenthal from the OBLV office) would be on the calls involv- ing sales or business advice (Tr. 549, 1550). Schmidt stated that Abshire was responsible for setting up a call center in Houston. The call center was to receive calls from customers if the call was not first picked up in the individual cit- ies where OBLV, NYPS, and DCPS were located. The same number would ring in the city and at the call center. This was also an attempt by Abshire to monitor the CSAs and provide the necessary sales training to them (Tr. 585–587). Before the im- plementation of the call center in Houston, Texas, calls for tick- ets to NYPS or DCPS would be handled by the CSAs in those cities. OBLV was handled by either Mengel or Rosenthal. Calls relating to customer service issues on the east coast when those offices were closed were handled by OBLV because of the time difference (Tr. 588–591). d. New York Party Shuttle, LLC Schmidt was the CEO of New York Party Shuttle, LLC (NYPS) in 2014 and 2015. He allegedly resigned as CEO of NYPS in 2015. There is no longer a physical office for NYPS (Tr. 77, 78). Schmidt testified that NYPS grew out of a business called Atlantic City Party Shuttle (a/k/a Jersey Shuttle, LLC) in 2004 that had formerly transported customers from the New York area to Atlantic city. Schmidt was the chair and CEO of Atlantic City Shuttle (Tr. 570–579; GC Exh. 48 at 001194). Fred Robert Moskowitz (Moskowitz) was the president of NYPS during all material times of the complaint and compliance proceeding. Moskowitz was appointed to that position by Schmidt. Moskowitz was a former sales representative and could not recall when he became president of NYPS. At NYPS, Moskowitz reported to Schmidt and supervised Henry Flores and Ron White (Tr. 957–961). He would meet with Schmidt at the DCPS’s office (or somewhere in the Washington D.C. area) and assisted Larry Lockhart once a week for about 3 weeks. During his time in D.C., Moskowitz assisted in training the sales repre- sentatives for D.C. Moskowitz also met with Schmidt in Vegas to help start up OBLV. Moskowitz was involved in a “share- holder structuring of the company” meeting in Houston, that in- volved NYPS, DCPS, Las Vegas and as described by him with “all of those tickets” (Tr. 965–969, 971). Moskowitz said that Ron White was the director of operations and he hired the tour guides and drivers. Moskowitz assumed that position after White left. White was director of operations (Tr. 973, 1017, 1018). Moskowitz said that Henry Flores did most of the hiring after White left and denied that Schmidt was involved in hiring the NYPS staff (Tr. 1018). Moskowitz denied managing the employees at DCPS or OBLV, but he did give ad- vice, as well as other NYPS managers, to the other companies (Tr. 1709, 1710). Ron White (testified) that he started with NYPS in August 2005 as a tour bus driver; became operations manager in 2006, and director of operations in 2012/2103. White was not hired by Schmidt but was promoted by him. As Operations Manager, re- sponsible for hiring tour drives, scheduling, payroll, monitor of work, meeting with vendors, with government officials, and con- ducting staff meets. White also worked the bus parking lot, cleaned the buses, adjust minor repairs to the buses, swept the buses, and fueled the buses (Tr. 878). White would then board the bus and ride to the designated area to pick up the tourists. He used wireless handheld credit card device for the tourists to pay for tickets on the spot before they could board the buses. White processed the payments. White said that none of the tourists brought tickets for DCPS tours and did not take credit card pay- ments for DCPS tours. He was also not aware that NYPS was accepting tickets purchased by tourists for DCPS tours that were used for NYPS tours (Tr. 882, 943). With regard to the NYPS buses, White testified that the decals on the buses had NYPS and OnBoard Tours logos. The logos would state “OnBoard Tours New York City” or “OnBoard DC”, with the logo NYPS or DCPS directly under DOT license num- ber (Tr. 910, 945). He was responsible for picking up the busses for NYPS from New Jersey and Kansas City. White would con- fer with Schmidt as to the buses needed for NYPS and Schmidt brought buses in the name of NYPS (Tr. 930, 944). He recalled driving a NYPS bus to Las Vegas for OBLV in January 2011. He insisted it was one of the NYPS buses and his assignment was directed by Schmidt. He believed that the bus eventually was driven by Chris Scott from Las Vegas to DC (when OBLV realized it could not operate buses in Las Vegas). White was not involved in training any OBLV drivers or tour guides. Schmidt testified that OBLV couldn’t hired drivers in Las Ve- gas and eventually used third parties to provide the bus transpor- tations. He said that initially OBLV used a bus from NYPS to do the sight-seeing tours for about one year. He said that the bus was then driven to D.C. for DCPS. He believed there were two drivers (Chris Scott and Miller Morris) who had drove the bus to D.C. He said that Scott was a driver for OBLV and then for DCPS and eventually returned to OBLV as a tour guide. Schmidt believed that Morris stayed in DC and ended up work- ing for DCPS (Tr. 579, 581, 582). White is also aware that five of NYPS’ buses were used in D.C. on various high tourist events, such as the cherry blossom time in D.C. and Obama’s inauguration. He said that buses were swapped, and the driver drove DC buses back to NY after Obama’s Inauguration in January 2009. He said that NYPS buses were used in other tourist events and during USDOT in- spections of DCPS buses. He said the buses would return to New York after the DCPS buses came out of the inspection. He said that inspections of buses occurred every six months in D.C. He believed this policy had stopped by 2012 (Tr. 848–853). White is not aware of any lease or rental arrangements when NYPS were used in Las Vegas or in D.C. by the other companies. White said he took 5 to 10 trips to D.C. during his tenure with NYPS either to meet with Schmidt and DCPS managers, attend the USDOT audits, and transporting the buses from NYPS to DCPS 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and back (Tr. 926, 928, 933). Schmidt testified that moving buses between NY to D.C. oc- curred during the busy times of the year, such as Cherry Blossom week in D.C., but insisted that NYPS was the only company that transported customers to D.C. because NYPS had buses licensed for interstate commerce. He said that NYPS was also the com- pany that sold the tickets to D.C. Schmidt did not recall if NYPS had sent buses down for D.C. specifically for the DCPS tours. He maintained that on those occasions when DCPS needed a bus, DCPS would usually rent a bus from a local third-party vendor for that particularly busy day or week (Tr. 577–780). Schmidt testified that DCPS stopped using its own buses in the 2013–2014 time frame. He said that DCPS started using leased buses on a 24/7 basis after it stopped owning buses. As such, he was aware that of two buses leased by NYPS to DCPS for 2 years but only for shuttle purposes (to and from the D.C. hotels and DCPS provided as a service to the hotel customers) and not for conducting tours. He said that the leases costed $4/5000 per month from DCPS to NYPS. He said that the two buses were leased by NYPS because NYPS was not generating revenues from the two buses. Schmidt insisted that the lease ar- rangement was an “arms-length” negotiation. He believed that White negotiated the lease on behalf of NYPS and Cook did the same for DCPS (Tr. 561–567). Schmidt denied he approved the lease arrangements (Tr. 567, 568). Schmidt further testified that DCPS eventually stopped using buses because the USDOT revoked the company’s license. He believed there was a total of five DCPS buses (Tr. 569). He said that two or three DCPS buses were then leased to NYPS for at least one year. He believed this occurred in 2015. Schmidt in- sisted that the lease was at arms length and that there should be a lease document reflecting the transaction. Schmidt said that Lockhart negotiated the deal for DCPS and White for NYPS (Tr. 570, 571). White said that Schmidt was not involved in hiring but he au- thorized the hiring. White said he did not hire customer sales agents (CSA)s. He said that was done by Levi June, Howard McKoy, Vincent Ford, Schmidt and Fred Moskowitz at NYPS. Levi June was the Operations Manager when White was hired. He subsequently became the vice-president of NYPS and DCPS. McKoy was identified as the vice-president of NYPS and DCPS. Moskowitz was identified as someone who was at one time or another the NYPS, D.C. and OnBoard Vegas president (Tr. 814– 818, 873, 874). White said that the training of CSAs was done over the phone. He did not participate in the training calls but knew when the training was being conducted in the NYPS office. He knew that Levi June, Howard, Moskowitz and Schmidt participated in the call. White, like Cook at DCPS, believed that Scott Wilson was a consultant for NYPS and involved in the training. White be- lieved that all CSAs from NYPS, DCPS and OBLV were on the call, and on occasions, Lockhart and Cook from DCPS and Paul Rosenthal for OBLV (Tr. 818–821, 905). Schmidt testified that the CSA training was coordinated by 24 When asked directly by the counsel for the General Counsel as to who the owner of NYC Guided Tours is, Moskowitz responded “I be- lieve that Party Shuttle Tours owns NYC Guided Tours, LLC” (Tr. 980). Scott Wilson and conducted on a weekly basis for approximately two hours. The calls were designed to promote sales and provide customer support training to the CSAs. Schmidt said that NYPS, DCPS, and OBLV were on the calls at various times. He also noted that mangers from these respective companies would also join on the conference calls (Tr. 644–646). Schmidt admitted that either Abshire or Scott Wilson did some training in accord- ance with a script. Scott Wilson was hired by NYPS, but he be- lieved Wilson also did consultant work for DCPS and maybe OBLV (Tr. 593). Schmidt testified that all three cities were encouraged to have customers look at tours in other cities as a marketing vehicle to drum up sales and emails went out to customers about the ser- vices of NYPS, OBLV, and DCPS. He said at suggestion of Scott Wilson, every caller was placed in a database and identified as a prospect or repeat customer (Tr. 599–601). White testified that he provided input on the training and pro- cedures for the bus drivers in NYPS, DCPS and OBLV (GC Exh. 85). White also attended USDOT audits of DCPS buses in Washington, D.C., attended also by Schmidt, Cook and Lock- hart. White helped create the “OnBoard NYS policies and pro- cedures” with McKoy and Schmidt in 2010. He believed that the policies applied to NYPS and DCPS (GC Exh. 14A; Tr. 825– 829). White had no role in developing or implementing the driver hiring and training policies and procedures for Las Vegas, D.C., and New York, but was certain that the policies were adopted in New York. White admitted that the policies and pro- cedures were “in draft form.” (GC Exh. 85; Tr. 903.) White confirmed the testimony of Cook that daily sales up- dates were sent by DCPS three times per day, and the reports went to DCPS, NYPS, and OBLV. White was not involved in tallying the sales figures (GC Exhs. 143, 144; Tr. 839). e. New York City Guided Tours, LLC Schmidt is also the CEO and custodian of records for NYC Guided Tours (NYCGT) (Tr. 41). NYCGT was incorporated in October 2014. Schmidt acts as the CEO, although he is not cer- tain if he was formally appointed as CEO of NYCGT. There is not a physical office in New York City for NYCGT. Schmidt states there are no documents to show owners, director manag- ers, partners, or officers of NYCGT (Tr. 491, 492). Fred Moskowitz, formerly of NYPS, is the president of NYCGT and was appointed to that position by Schmidt. Mos- kowitz was informed that NYPS was closing by Schmidt and within four weeks, Schmidt named him president of NYCGT. According to Schmidt, Moskowitz was a co-founder of NYCGT, along with PST and himself (Tr. 335). Moskowitz testified that “I believe that PST owns NYC Guided Tours, LLC.”24 Mos- kowitz proposed to Schmidt a business model for tours that was different from NYPS. Moskowitz admitted that the discussions with Schmidt were in flux and he could have still been president of NYPS when he made the proposal (Tr. 980). Moskowitz tes- tified that NYPS is still in existence but there are no operations, no activities, and it had not filed for bankruptcy. He denied that NYCGT purchased NYPS (Tr. 1713). As noted in previous testimony, Schmidt is a partner at Party Shuttle Tours. Party Shuttle Tours is not a Respondent in this proceeding. NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 19 Moskowitz explained that under his business model, NYCGT rented as opposed to owning tour buses and that there are no em- ployees except for himself and correspondently, no employee benefits, such as health insurance at NYCGT. He said that unlike NYPS, NYCGT did not have levels of management (Vincent Ford, Ron White, Moskowitz at NYPS). He said that NYCGT did not market its tours at hotels. He said that there are no CSAs, and he is the one that takes the calls for tickets (if not purchased online) by the customers (Tr. 1715–1726). Moskowitz essen- tially insisted that all management and administrative functions at NYCGT were done by him and that Schmidt never did any hiring (Tr. 1727–1729). Moskowitz said his business model was approved by the PST board (Tr. 1743). Moskowitz said, under this business model, NYCGT would not have any employees (except him). The tour guides would be contracted out, the bus drivers would be part of the rental ar- rangements when buses are leased and there would be no sales representatives (Tr. 984, 985). Tour tickets would be purchased online or through a telephone arrangement handled by Mos- kowitz. Moskowitz testified that NYCGT operates tours in New York City and hires guides (as independent contractors) to con- duct the tours. NYCGT does not employ drivers for the buses. The buses are rented or leased, and the drivers are part of the bus rentals (Tr. 949–953, 989). Initially, NYCGT used NYPS buses, but now they are all rented out (Tr. 987). Schmidt confirmed that since NYCGT did not own any tour buses, there is no need for an operations manager (Tr. 546–547). Moskowitz acknowledged that NYCGT honored the tour tick- ets that were purchased by customers from NYPS. He said that this lasted for about 3 or 4 months and that NYPS buses were leases during the first 30 days because of insurance-related issues (Tr. 1734, 135). He said that the NYCGT visited the same NYC attractions as NYPS (Tr. 1746, 1747), but that the boat tours are different because NYPS rented a hydro-ferry whereas NYCGT uses the Staten Island Ferry, which was free (Tr. 1747, 1748). In terms of sales, Moskowitz stated that NYPS was six to eight times larger than NYCGT (Tr. 1749). Moskowitz did not recall when he became president of NYCGT. He is responsible for all aspects of NYCGT. Mos- kowitz is the only employee of NYCGT at this time. However, at the inception of NYCGT, there were four employees (Mos- kowitz, Joey Cruz, Henry, and Adrian Flores). Moskowitz said that he and Henry Flores did the hiring for NYCGT and Schmidt had no role in hiring employees at NYCGT (Tr. 1020). In addition to the four employees identified by Moskowitz, the payroll records showed for the years ending on December 31, 2015, and 2016 that NYCGT retained Joseph Cruz as a driver at NYPS and rehired by NYCGT to dismantle and relocate junk buses. Moskowitz also hired Melvin Brewster, who had previ- ously worked at NYPS as a driver. Brewster was a bus operator for NYCGT. Brewster (Driver); Cruz (Driver); Tom Eikard (Tour Guide); Kiernan (Tour Guide); Molin (Driver); David Roffe (Tour Guide); Gregory Boyd (Driver); Stanley Charmin (Driver); Rodney Kelly (Driver); Luis Valencia Espen (driver), all worked at NYPS, and NYCGT (GC Exhs. 148, 149). The NYCGT payroll also shows that Matthew Kiernan was a loader of passengers on the buses and a tour guide at NYCGT and NYPS (Tr. 995). Moskowitz denied that Joseph Cruz was still employed by NYCGT (Tr. 1738). II. GALAGO INVESTMENTS, LLC Galago Investments, LLC (Galago) is wholly owned by Schmidt and provides the bookkeeping, payroll, administration, job applications and hiring for all the Respondents. For example, Moskowitz testified that Galago administrated the job applica- tions for new hires and issued the payroll for NYCGT employees (Tr. 996; 1002–1004). The November 29, 2012, prospectus for PST, LLC (GC Exh. 49(b) at 001228) stated that PST, NYPS, and DCPS currently utilize the services of Galago Investments, LLC, a company wholly owned by Tom Schmidt, to provide administrative, bookkeeping, and management ser- vices for the company. Galago also subleases office space to the Company for its Houston administrative office. Galago is not an operating business, but rather is merely a conduit to al- locate expenses between the various operating PST subsidiar- ies and other businesses affiliated with Mr. Schmidt. Galago bills the companies for its costs plus a 5% management fee to cover administrative expenses. It is expected that Galago In- vestments, LLC, will provide similar services for any new PST subsidiaries on the same arrangement. Total amounts paid by the Company’s subsidiaries total approximately $35,000 per month. Galago does not intend to generate profits, and in the event that profits are derived from transactions with PST, those profits will be returned to PST. Shelly Hogan was the bookkeeper at Galago. She was the point person at Galago when there were issues on payroll and hiring (or discharging) employees at NYCGT, DCPS, NYPS, and OBLV (Tr. 57). Galago handled other financial and admin- istrative matters for the named Respondents, including automo- bile insurance, workers’ compensation, other insurance policies and employee medical insurance and information. Galago is lo- cated in Houston, Texas (Tr. 58–60). The administrative and financial services at Galago were also provided by Iryna Matiukhina, who is identified as the Adminis- trator of Galago. In her role, Matiukhina interacted with Re- spondents’ employees in areas such as COBRA and dental insur- ance, as well as payroll and general inquiries (GC Exh. 126). III. FINANCIAL TRANSACTIONS AND LOAN ARRANGEMENTS OF THE RESPONDENT ENTITIES Schmidt testified, and the record shows, that funds are readily transfer between Respondents’ accounts for various reasons. Of- tentimes, Schmidt would be the individual implementing the transfers (Tr. 1886). On other occasions, Shelly Hogan, had the authority, upon Schmidt’s approval, implement the fund trans- fers up to a certain dollar amount. None of the managers at NYPS, NYCGT, OBLV, or DCPS testified that they had the au- thority transfer funds to another Respondent company. Moskowitz testified that he never assisted in the transfer of funds or assets from NYPS to NYCGT and had no knowledge of any outstanding loans owed to NYPS from DCPS or PST (Tr. 980–985). White was a signor for two bank accounts and could deposit and withdraw. White noted that Schmidt was also a si- gnor. White recalled funds were transferred between NYPS and DCPS on at least one occasion due to cash flow problem with DCPS. White said he was not authorized to transfer funds and 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD only Schmidt could make transfers between Respondents. White is also aware that funds were transferred to NYPS and to OBLV. He does not know how many times or the origin of the funds. White is aware that Schmidt has transferred his own funds to the different Respondents, including NYPS (Tr. 860). The record shows that Schmidt either provided or received monetary funds to and from NYPS, OBLV, DCPS, and NYCGT from 2012 to 2017 (GC Exh. 74). The evidence of record also reveals monetary loans owed by DCPS, NYCGT, NYPS, OBLV to PST from 2012 to 2016. Loans to DCPS was owed to PST of $608,746 in 2012; $750,820 in 2013; $1, 746,327 in 2014; $1,550,708 in 2015; and $1,503,577 in 2016. There were loans owed by NYCGT to PST of $24,240 in 2014; $105,803 in 2015; and $497,926 in 2016. Loans paid by NYPS to PST reflect $85,260 in 2012; $75,999 in 2013; $135,889 in 2014; and $3,338 in 2015. Finally, outstand- ing loans owed to PST by OBLV showed $342,795 in 2012; $570,772 in 2013; $1,267,568 in 2014; $1,162,924 in 2015; and $1,188,157 in 2016 (GC Exh. 73). The evidence of record reveals numerous transactions be- tween NYPS to DCPS in the form of loans and repayments in 2012 and 2015 (GC Exh. 70). Documents also established nu- merous financial transactions back and forth between OBLV, DCPS and PST from 2012 to 2017 (GC Exh. 72). The parties stipulated to various and numerous financial transfers to and from the Respondents of at least $50,000 dollars for each trans- action (Jt. Exh. 3). Schmidt does not deny that particular transactions between Respondents were loan arrangements but insisted that they were at “arms-length” and he was not involved in the transactions (Tr. 651, 652). Discussion and Legal Analysis The counsel for the General Counsel alleges that New York Party Shuttle (NYPS), Washington DC Party Shuttle (WDCPS), Party Shuttle Tours (PST), OnBoard Las Vegas (OBLV), and New York City Guided Tours (NYCGT) are a single employer. It is further contended by the General Counsel that NYCGT is an alter ego to NYPS and/or that NYCGT is a Golden State suc- cessor to NYPS.25 Extensive testimony and evidence was taken as to the inter-relationship among the companies by the counsel for the General Counsel to establish single employer, alter ego and/or successorship relationship. This was necessary because New York Party Shuttle, although not formally dissolved, no longer has any valuable assets to remedy a backpay award to Pflantzer. At the same time, the Respondents deny that they op- erated as a single employer or that NYCGT is an alter ego to NYPS and/or a successor to NYPS. a. NYCGT and NYPS are Alter Egos The Supreme Court has long-recognized that the operation of a prior enterprise under a different name could, in certain cir- cumstances, constitute a disguised continuance” binding the new company to the old company’s obligations under the Act. South- port Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942). An 25 On May 31, 2018, the counsel for the General Counsel moved to amend the caption and paragraph six of the amended compliance speci- fication. After providing the Respondents an opportunity to respond, I “alter-ego” analysis is normally reserved for situations in which one entity has gone out of business and has been replaced by another. In determining whether an enterprise is a “disguised continu- ance” or alter ego of another business, the Board examines whether the entities share substantially identical management, business purpose, operation, equipment, customers and supervi- sion. Other factors include common ownership or control, lack of arm’s length dealings between the two entities and whether one entity was formed or used to avoid union obligations under the Act. No one factor is controlling and not all the indicia need be present to find an alter ego relationship. Kenmore Contracting Co., 289 NLRB 336, 337 (1988), enfd. 888 F.2d 125 (2d Cir. 35 1989), and cases there cited; see also U.S. Reinforcing, Inc., 350 NLRB 404, 404–405 (2007). A further consideration is whether the purpose behind creation of an alleged alter ego was legiti- mate or was to evade responsibilities under the Act, that is, if the second company was created in order to allow the first company to evade its responsibilities under the Act. Not all factors are nec- essary to an alter ego finding and no single factor is determina- tive There is no doubt in my mind that NYCGT is an alter ego of NYPS based upon the factors of identical management, business purpose, customers, common ownership, and lack of arm’s length dealings between the two entities. Charles Schmidt was the CEO of NYPS and is the CEO NYCGT. Moskowitz was the president of NYPS and became the sole manager of NYCGT when appointed by Schmidt. As such, the management of NYPS and NYCGT is identical, even if the secondary line supervisors, such as Ron White, are no longer employed at NYCGT. I also note that Moskowitz was well aware of the Pflantzer’s unfair la- bor complaint against NYPS, since he was the president of NYPS at the time. In addition, Moskowitz was involved and had the authority to discuss settlement of the NYPS complaint as president in February 2014. The ongoing litigation and settle- ment discussions continued even after October 2014 when Mos- kowitz became president of NYCGT. This authority to discuss settlement with the NLRB was given to him by Schmidt (GC Exh. 152; Tr. 977). There is also common ownership of NYCGT and NYPS through Schmidt. Schmidt is the CEO of PST and NYCGT is wholly owned by PST. Schmidt has a 70.79 percent ownership in PST through Infinity Trade Capital, LLC, which he owns 69.44 percent of the company as of March 2013 (GC Exhs. 44, 48). Schmidt testified that the PST board approved the creation of NYCGT based upon Moskowitz’s business model. However, there are no corporate minutes of such approval. It is my reason- able opinion that Schmidt simply gave the green light to incor- porate NYCGT after his discussions with Moskowitz. Further, the initial operation and purpose of the two compa- nies are identical. NYPS conducted tours and the New York City area tourists are its customers. NYPS conducted bus tours with tour guides. NYPS hired the bus drivers and tour guides. NYCGT also employed bus drivers and tour guides at least for granted the motion of the General Counsel to amend, specifically to al- lege that NYCGT is an alter ego and/or a Golden State successor to NYPS (GC Exh. 1(RR). NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 21 the first 4 months of operations. The tours conducted by both companies visit the same major New York City attractions. NYCGT hired a number of former NYPS employees. At the in- ception of NYCGT, there were four employees (Moskowitz, Joey Cruz, Henry and Adrian Flores). Moskowitz said that he and Henry Flores did the hiring for NYCGT. In addition to the four employees, the payroll records showed for the years ending on December 31, 2015, and 2016 that NYCGT retained Joseph Cruz as a driver at NYPS and rehired by NYCGT. Moskowitz also hired Melvin Brewster, who had previously worked at NYPS as a driver and became a bus operator for NYCGT. Other NYCGT employees included Tom Eikard (Tour Guide); Kiernan (Tour Guide); Molin (Driver); David Roffe (Tour Guide); Greg- ory Boyd (Driver); Stanley Charmin (Driver); Rodney Kelly (Driver); and Luis Valencia Espen (driver). All had previously worked at NYPS and NYCGT (GC Exhs. 148, 149). The NYCGT payroll also shows that Matthew Kiernan was a loader of passengers on the buses and a tour guide at NYCGT and NYPS (Tr. 995). The buses initially used by NYCGT were owned by NYPS. Aside from the naked testimony of Schmidt, I find that there are no documents to rebut the position of the General Counsel that the transfer of the bus assets from NYPS to NYCGT was not an “arm’s-length” transaction. Schmidt testified that there should be some leased or rental documents showing the transaction, but none was produced pursuant to the General Counsel’s subpoena and none proffered in the Respondents’ case-in-chief. The coun- sel for the General Counsel subpoenaed for the rental or lease arrangements for the buses. Schmidt testified, as the custodian of records for NYCGT, that bus leased documents between NYPS and NYCGT should have been produced pursuant to the subpoena but were not and he could not find them (Tr. 472–477). As such, I draw an adverse inference against the Respondents that such lease or rental documents do not exist and that the trans- fer of the NYPS buses to NYCGT was not at arm’s length.26 NYPS and NYCGT, as alter egos, are responsible for the un- fair labor practices against Pflantzer. A change in corporate form that involves no more than a “technical change in the structure or identity of the employing entity, frequently to avoid the effect of the labor laws, without any substantial change in its ownership or management” may be disregarded and the alter ego “is subject to all of the legal and contractual obligations of the predecessor.” Howard Johnson Co. v. Hotel & Restaurant Employees Detroit Local Joint Executive Board, 417 U.S. 249, 259 fn. 5 (1974). Here, there is ownership, management and supervision, business purpose, operations, equipment, and customers that are factors evidenced in both companies and determinative of alter ego sta- tus exists. Crawford Door Sales Co., 226 NLRB 1144, 1144 (1976). NYPS and NYCGT had the same managers, supervi- sion, and owners; substantially identical customers, and the same operations. Equipment and assets were transferred from NYPS 26 The counsel for the General Counsel that I should sanction the Re- spondents for failing to provide all documents pursuant to subpoenas. I would decline this request but would sanction the Respondents in refer- ence to specific documents not provided. 27 To be clear, OnBoard Tours is a marketing brand and a public or “customer-facing” entity (as described by Tyree Cook) to generate sales for NYPS, WDCPS, PST, OBLV, and NYCGT (Tr. 1048, 943). to NYCGT without any payment. A number of NYPS employ- ees initially remained the same at NYCGT. There is no indica- tion that these employees had applied for new employment with NYCGT; they were simply transferred to NYCGT and continued to receive their wages through Galago through at least 2016. The Respondents argue that Moskowitz provided sound business rea- sons for establishing NYCGT. However, the mere fact that there may have been legitimate business reasons to create NYCGT does not distract from the fact that all the factors for an alter ego situation exist here. The finding that the two entities are alter egos is expressly to prevent NYPS, a Respondent, to quickly evade its responsibilities under the Act. There can be no doubt that NYPS and NYCGT constitute alter egos and I so find. See, American Elevator Corp., 362 NLRB 29, 30 (2015). b. NYPS, WDCPS, PST, OBLV, and NYCGT are a Single Em- ployer The counsel for the General Counsel alleges that NYPS, DCPS, PST, OBLV, and NYCGT are a single employer.27 The Respondents denies this allegation. Single-employer status is similar to but different from alter ego status. Johnstown Corp., 322 NLRB 818 (1997). The Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise. Radio Union v. Broadcast Service of Mobile, 380 U.S. 255 (1965). The Board focuses on four factors in determining whether entities constitute a single employer: (1) interrelations of operations, (2) common manage- ment, (3) centralized control of labor relations, and (4) common ownership or financial control. Bolivar-Tees, Inc., 349 NLRB 720 (2007); see also Rogan Brothers Sanitation, 362 NLRB 547 (2015), and cases cited therein. All four factors need not be pre- sent. Bolivar-Tees, above; Rogan Brothers, above. Significantly, in the single employer analysis, there is no re- quirement that one entity was formed in order to avoid responsi- bilities under the Act. Here again, however, no one factor is con- trolling and not all need be present, although the most important is centralized control of labor relations because it tends to demonstrate “operational integration.” The Board has held that the first three factors are more critical than the last, and further that centralized control of labor relations is of particular im- portance because it tends to demonstrate “operational integra- tion.” See Denart Coal Co., 315 NLRB 850, 851 (1994), enfd. 71 F.3d 486 (4th Cir. 1995). Single employer status is also characterized by a lack of an arm’s-length relationship. Hydrolines, Inc., 305 NLRB 416, 417–419 (1991); RBE Electronics of S.D., Inc., 320 NLRB 80 (1995) and cases there cited; see also, Mercy Hospital of Buffalo, 336 NLRB 1282, 1283–1284 (2001). The Board has found that two nominally separate entities constitute a “single employer” when there is an absence of an arm’s-length relationship between them. Hydrolines, Inc., above. The significance of finding two OnBoard Tours as an entity is not an employer under the Act. It is not disputed that OnBoard Tours does not have any statutory employees and merely licensed its name to the other entities. See, Operating Engineers Local 487 Health & Welfare Trust Fund, 308 NLRB 805 (1992) (dis- missing the complaint because the Fund, the only named Respondent, did not employ any statutory employees). 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD companies to be a “single employer” is that both are jointly and severally liable for the unfair practices committed and are re- sponsible for remedying them. In my opinion, I find that all five Respondents is a single em- ployer. In first dealing with common ownership and financial control, there is no question that NYPS, DCPS, OBLV are owned by PST. OBLV and NYCGT are wholly owned by PST. PST owns 92.46 percent of NYPS and almost 99 percent of DCPS. Schmidt, through Infinity Trade Capital, LLC, owns 70.79 percent of PST. Schmidt owns 69.44 percent of Infinity Trade Capital, LLC. Schmidt also exercise almost unfettered control over the financial aspects of all five entities. Schmidt made hundreds of banking transactions and routine expenditures among the companies through PST. A cash flow problem of one company with failing to meet payroll or needing bus repairs was addressed by Schmidt through PST or another Respondent to provide the funds. Moskowitz and White testified that they were not involved in these transactions and were not authorized to transfer funds. Cook also provided similar testimony while as a manager at DCPS. The evidence of record reveals numerous transactions between NYPS to DCPS in the form of loans and repayments in 2012 and 2015 (GC Exh. 70). Documents also established numerous financial transactions back and forth be- tween OBLV, DCPS, and PST from 2012 to 2017 (GC Exh. 72). The parties stipulated to various and numerous financial trans- fers to and from the Respondents of at least $50,000 dollars for each transaction (Jt. Exh. 3). I find as significant the monetary loans owed by DCPS, NYCGT, NYPS, OBLV, to PST from 2012 to 2016. Loans to DCPS was owed to PST of $608,746 in 2012; $750,820 in 2013; $1,746,327 in 2014; $1,550,708 in 2015; and $1,503,577 in 2016. There were loans owed by NYCGT to PST of $24,240 in 2014; $105,803 in 2015; and $497,926 in 2016. There is nothing in the record of any loan arrangements, fees and interest paid on these loans, or any other documents to evidence that the loans were negotiated at arm’s-length. In particular, loans repaid by NYPS to PST reflect $85,260 in 2012; $75,999 in 2013; $135,889 in 2014; and $3,338 in 2015, which in my mind, shows a lack of arm’s-length relationship and an effort of NYPS to de- plete its assets by transferring them to PST (GC Exh. 73). The counsel for the General Counsel subpoenaed financial documents showing any loan agreements, schedule of repay- ments, fee, interest on the loans and other aspects of fund trans- actions, but not produced by the Respondents. As such, I draw an adverse inference that such documents did not exist that the funds were transferred at less than arm’s length. There is also interrelation of operations. All five Respondents are engaged in the tourist industry by providing tours in various cities. Overwhelming evidence showing interrelation of opera- tions to include (1) the credible testimony from Cook and White that company buses from NYPS and DCPS were readily trans- ferred back and forth during the busy tourist season or for special events. NYPS even provided a bus to OBLV, which in turn, sent the bus after 1 year, to DCPS; (2) Jerry Abshire from PST estab- lished a call center in Houston that was accepting calls from cus- tomers dialing into NYPS, DCPS and OBLV local numbers. When a customer could not reach a sales representative at the local number, the call center system was designed to field those calls; (3) The call center was also used by Abshire to monitor the customer sales agents and to provide necessary training if needed. The training of sales representatives was an integral ne- cessity to ensure revenue growth at NYPS, DCPS, and OBLV. As such, conference calls of all the sales representatives, along with some of the Respondents’ managers and supervisors were conducted on a weekly basis. These calls would last up to two hours per week; (4) NYPS, DCPS, OBLV, NYCGT, are all in- cluded at one time or another, on the OnBoard website for infor- mational purposes and for promoting tours in their individual lo- cations. OnBoard licensed the marketing on behalf of PST. The website included specific tours, schedules and duration for each location in New York, Washington, D.C., and Las Vegas. Ad- vertising and informational brochures included promotions for OBLV, NYPS, DCPS, NYCGT were distributed under the OnBoard sightseeing tours logo (GC Exh. 142); (5) Loans and financial arrangements among the Respondents were regularly transacted with no correspondently secured financial or promis- sory notes for the loans, evidencing a less than arm’s-length ar- rangement between the parties; (6) Policies and procedures on employee conduct, behavior and training were an integral part of OBLV, DCPS, and NYPS. Employees of these three Respond- ents were required to wear the same uniforms; and (7) All the Respondents shared the same bookkeeping company, Galago, which was wholly owned by Schmidt. Indeed, Galago was more than just a bookkeeping company. Galago was used to transfer loans, issue payroll, secure employee health insurance and other benefits, apply for vehicle insurance for OBLV, DCPS, and NYPS, process workers’ compensation claims, prepared tax forms for the Respondents, as well as other financial matters. I find that there is also common management among the Re- spondent entities. Indeed, as described by the witnesses, includ- ing Schmidt, I find that the management team was readily fungi- ble among the Respondents. Shawn Mengel, who had an inves- tor share in PST, went from OBLV to DCPS. Larry Lockhart, initially hired in OBLV, found his way to DCPS. Lockhart also has a General Power of Attorney for NYCGT (GC Exh. 63 (C)). Levi June was vice-president of NYPS and DCPS. McKoy was also vice-president of NYPS and DCPS. Jerry Abshire was the vice-president of sales and marketing for PST, but he also con- ducted training and customer support for all the phone sales rep- resentatives at NYPS, OBLV, and DCPS. Scott Wilson also con- ducted training. He was hired by NYPS and did consultant work for DCPS as well as OBLV. Ron White, supervisor in NYPS, helped with the USDOT bus applications and issues and traveled to Washington, D.C. to assist DCPS. White also testified that he helped develop the training policies and procedures for bus driv- ers that were used in all three cities. Fred Moskowitz helped establish the office in Las Vegas for OBLV and frequent DCPS for meetings with Schmidt and the DCPS management team. Moskowitz was president of NYPS and became sole manager of NYCGT by Schmidt. There is also centralized control of labor relations. Schmidt was involved in the hiring, promotions and reassignments of managers and supervisors at PST, DCPS, NYPS, OBLV, and NYCGT. On occasions, Schmidt would also be involved in the selection of tour guides and/or drivers. It is conceded that most of the drivers and guides in the respective companies were hired NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 23 by the local management team. But is also true that Schmidt was involved in the discipline and rehiring of some of the drivers and guides. Schmidt was instrumental in rehiring Cook in DCPS af- ter he was discharged and in fact subsequently promoted Cook to operations manager. Schmidt promoted Cook, Lockhart, Moskowitz and Mengel. On other occasions, Schmidt would be the advisor to the personnel action before the decision is made. As noted above, labor relations dealing with customer service, conduct and behavior policies and procedures of the drivers and guides were uniform with NYPS, OBLV and DCPS. Some of these policies were developed by a manager in one company but used by all the Respondents. Wilson Scott, who was hired by NYPS, was instrumental in developing a call center sales script that was followed by all the Respondents’ sales representatives. Scott also provided consultant advice to DCPS. Abshire, as vice- president of PST, established the call center and provided train- ing to the sales representatives. Training and conduct are clearly labor relations functions. IV. NYCGT IS A GOLDEN STATE SUCCESSOR TO NYPS The Supreme Court has held that a bona fide purchaser of a business which has knowledge of the seller’s unfair labor prac- tices at the time of the purchase, and who continues the business without interruption or substantial change in operations, em- ployee complement, or supervisory personnel, has joint and sev- eral liability for remedying the seller’s unfair labor practices. Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973). The Supreme Court held that a “bona fide purchaser, acquiring, with knowledge that the wrong remains unremedied, the employing enterprise which was the locus of the unfair labor practice, may be considered in privity with its predecessor,” thus the successor assumes the duty of its predecessor. Golden State Bottling Co, above at 423. Additionally, if the successor had notice of poten- tial unfair labor practice liability, the Board must suppose that the successor had the chance to avoid or mitigate that liability. The successor then has the burden of rebutting that presumption and showing they were not on notice. Lebanite Corp. &/or R.E. Serv. Co. & W. Council of Indus. Workers, Local 2554, Affiliated with United Bhd. of Carpenters & Joiners of Am. & Oregon Panel Prod., LLC, 346 NLRB 748, 754 (2006). These are known as “Golden State successors,” and in apply- ing this standard, the Board has observed that these successors are in the best position to remedy the predecessor’s liability with- out unfair hardship, because it can account for any potential lia- bility in the purchase price or secure an indemnity clause in the sales agreement. D.L. Baker, Inc., 351 NLRB 515, 520 (2007). The purchaser is defined as a Golden State successor because it must remedy the unfair labor practices of the predecessor. And, unlike in successorship cases for bargaining purposes, this obli- gation does not require that a majority of the successor’s employ- ees be former employees of the predecessor or even that they be represented by a union. D. L. Baker, Inc., above, 519, 545. In Baker, the Board rejected the respondent’s contention that the General Counsel must also prove that the predecessor’s potential liability be reflected in the purchase price of the business, citing Perma Vinyl Corp., 164 NLRB 968 (1967), enfd. sub nom. U.S. Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968). In- deed, despite Respondents’ arguments that NYCGT was wholly incorporated and independent and did not purchase NYPS, there is no requirement that a sale or purchase of NYPS is prerequisite to a finding of a Golden State successor. Lebanite, above, 752. I find that NYCGT retained NYPS employees and continued NYPS business without interruption. As such, I find that NYCGT is a Golden State successor to NYPS. NYPS operated a tour business using buses. NYCGT also operates a tour busi- ness and at least, in the initial 3 or 4 months and used the buses owned by NYPS. As noted above, there are no documentary ev- idence proffered by the Respondents that the buses used by NYCGT were obtained at during arm’s-length negotiations. NYCGT, also at its formation, retained a complement of NYPS employees as bus drivers and tour guides. Although supervisory personnel were discharged when NYPS ceased operations, Mos- kowitz continued as the manager. Moskowitz was president at NYPS. Schmidt, the former CEO of NYPS, became the CEO of NYCGT. Contrary to Moskowitz’ testimony, the documents provided by the Respondents pursuant to subpoena of NYCGT records show that NYCGT had hired employees when it first started op- erations under Moskowitz. The payroll records for NYCGT shows that Joseph Cruz was a driver at NYPS and rehired by NYCGT to dismantle and relocate junk buses. Moskowitz also hired Melvin Brewster, who had previously worked at NYPS as a driver. Brewster was a bus operator for NYCGT. Brewster (Driver); Cruz (Driver); Tom Eikard (Tour Guide); Kiernan (Tour Guide); Molin (Driver); David Roffe (Tour Guide); Greg- ory Boyd (Driver); Stanley Charmin (Driver); Rodney Kelly (Driver); Luis Valencia Espen (driver), all worked at NYPS and NYCGT (GC Exhs. 148, 149). Matthew Kiernan was a loader of passengers on the buses and a tour guide at NYCGT and NYPS (Tr. 995). Upon examination by the counsel for the General Counsel, Moskowitz did not believe that the payroll records were accurate (Tr. 993–995). He denied knowing they worked for NYCGT alt- hough the payroll checks for the employees were issued through Galago Investments. Moskowitz believed the checks were is- sued in error (Tr. 1002–1004). As noted above, initially, NYCGT hired a number of former NYPS employees. At least seven employees from NYPS were transferred over to NYCGT. All had previously worked at NYPS and NYCGT (GC Exhs. 148, 149). Moskowitz insisted that the documents provided by the Respondents were inaccurate and not authentic because he had testified that NYCGT had no employees except for himself (GC Exhs. 148, 149). However, the payroll records are clearly ordinary business records pro- vided by NYCGT pursuant to the General Counsel’s subpoena. None of the Respondents provided other records to rebut or show otherwise that the NYCGT payroll data is inaccurate. What is more telling, when Moskowitz realized his testimony was incon- sistent with the objective payroll records and when he was re- called as a witness by the Respondents, Moskowitz testified that he contacted Shelly Hogan. According to Moskowitz, Hogan told him that the employees were on the payroll of NYCGT due to a contractual obligation between NYPS and NYCGT was to continue paying them even after NYPS ceased operations (Tr. 1025, 1026). Moskowitz then proceeded to discharge all the above-named 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees. He did not testify when he discharged the employees after his discovery that they were still on the NYCGT payroll in May 2018. Moskowitz was questioned as a witness on direct examination by Schmidt (Tr. 1025) BY MR. SCHMIDT: On that topic, Mr. Moskowitz, I wanted to address the confusion you had about which company em- ployed people at which time. And you testified last week that, to the best of your recollection, NYC Guided Tours, never em- ployed any drivers, and when we looked at Exhibits 148 and 149, which appear to show, not only tour guides, but also driv- ers employed by the company, after your testimony last -- or two weeks ago, did you go back to determine what the expla- nation for that confusion was? By MOSKOWITZ: Yes, I called Shelly Hogan, who was a for- mer long-term employee of Galaga (phonetic), and I said, “Shelly, I didn’t know these people were NYC Guided Tours, these drivers, at all. I thought they were all New York Party Shuttle people.” And she said that she had switched them over, because of a contract that was done with NYPS and NYC Guided Tours to fulfill the obligations, I think I’m saying it cor- rectly, of NYPS. And that there was a binding contract for them and they—since I didn’t see these checks, these checks were sent out directly to people or to my office in sealed envelopes, I had no acknowledgement that they-- I had no idea what, you know, what the company was paying them. No idea. Otherwise I wouldn’t be so vehemently sure that they didn’t work— He testified to discharging Stanley Sherman, Annie DeLeon and the other employees resigned “on their own accord” (Tr. 1022). If indeed, NYCGT was obligated to continue paying these employees as told to him by Hogan, Moskowitz could not have lawfully terminated them. In my opinion, this stretches be- yond any sense of credibility because it is difficult for me to be- lieve that Moskowitz, as the sole manager of NYCGT, did not realize he had employees at the inception of NYCGT in October 2014 until he testified as a witness at the NLRB hearing on May 18, 2018. It is incredulous that Moskowitz testified he did not know that Joseph Cruz, who came over from NYPS to NYCGT with him, continued to be an employee with NYCGT until Mos- kowitz allegedly terminated him in 2018. The record of evidence shows that Cruz even possessed a General Power of Attorney authorized by Schmidt in May 2016 (GC Exh. 62(A)). These individuals were employees and not independent contractors. Further, both NYPS and NYCGT operated bus tours. NYCGT continued to operate tours, like NYPS, under the OnBoard Tour marketing brand. Moskowitz testified that the NYCGT buses were from NYPS. There are no documents, alt- hough subpoenaed by the counsel for the General Counsel, to show any financial, rental or lease agreements to reflect the transfers of the buses from NYPS to NYCGT. The NYPS buses were in operation by NYCGT at least for 3 or 4 months and the vehicle insurance policy of the NYPS were carried by NYCGT through October 2015. NYCGT also honored the tour tickets purchased by customers at NYPS before NYPS closed opera- tions for at least 3 months (Tr. 1034, 1035). Schmidt estimated the value of the tickets as over $1 million (Tr. 1896–1897). Finally, both Schmidt and Moskowitz were on notice of the unfair labor practice. As referenced above in my “alter ego” analysis, the CEO for NYPS and NYCGT was Schmidt, who was and is intimately involved in the Pflantzer’s unfair labor practice complaint. Moskowitz was also well aware of Pflantzer’s com- plaint against NYPS, since he was the president of NYPS at the time. In addition, Moskowitz was involved and had the authority to discuss settlement of the NYPS complaint as president in Feb- ruary 2014. The ongoing litigation and settlement discussions continued after October 2014 when Moskowitz became presi- dent of NYCGT. This authority to discuss settlement with the NLRB was given to him by Schmidt (GC Exh. 152; Tr. 977). I find that the successor had notice of NYPS’s unfair labor practice liability and I must suppose that the successor had the chance to avoid or mitigate that liability. The successor then has the burden of rebutting that presumption and showing they were not on notice. Lebanite Corp. &/or R.E. Serv. Co. & W. Council of Indus. Workers, Local 2554, Affiliated with United Bhd. of Carpenters & Joiners of Am. & Oregon Panel Prod., LLC, 346 NLRB 748, 754 (2006). Respondent NYCGT, as suc- cessor who knew of the predecessor NYPS’ unfair labor practice, has failed in its burden to rebut the presumption it was not on notice and is jointly and severally liable. In Martin J. Barry Company, the respondent was held to be a successor who knew of the predecessor’s unfair labor practice and was found jointly and severally liable. Therefore, the successor was held liable to the unit employees for losses resulting from the predecessor’s refusal to execute the agreed-upon contract. Martin J. Barry Co., 278 NLRB 393, 393 (1986); also, Harmon Auto Glass, 354 NLRB 872 (2009). CONCLUSIONS 1. The Respondents , New York Party Shuttle, LLC, d/b/a OnBoard Tours, Washington DC Party Shuttle, LLC, d/b/a OnBoard Tours, OnBoard Las Vegas Tours, LLC, d/b/a OnBoard Tours, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC, is a Single Employer. New York Party Shuttle, LLC, d/b/a OnBoard Tours and NYC Guided Tours, LLC are alter egos. NYC Guided Tours is a Golden State Successor to New York Party Shuttle, LLC. 2. The period for which the Respondents are liable for pay- ment of backpay and benefits commenced on February 12, 2012, to July 27, 2014, and from August 14, 2104, to the present (At- tachment 1). 3. The backpay includes the reasonable calculation of Pflantzer’s earned tips during this same period (attachment 2). 4. The excess tax on backpay owed to Pflantzer as calculated by the Region’s compliance officer was reasonable. The total excess tax on backpay figure depends on when backpay is paid and when Pflantzer is offered a valid reinstatement (attachment 3) 5. The General Counsel has employed a reasonable method of computing the gross and net backpay and benefit obligations incurred by the Respondents and that method is both consistent with the Board’s requirements and designed to produce an accu- rate determination of those obligations. 6. The Respondents have failed to establish that any reduction in the computed backpay and benefit obligations is appropriate. NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 25 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended ORDER The named Respondents above, its officers, agents, succes- sors, and assigns, shall forthwith pay to Fred Pflantzer the sum of $91,912, plus interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010), accrued to the date of payment and minus tax withholding required by law. In accordance with Don Chavas, LLC, d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), my recommended order requires the Re- spondents to compensate Fred Pflantzer for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award and to file with the Regional Director for Region 2 within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appro- priate calendar years. AdvoServ for New Jersey, 363 NLRB 1324 (2016). Dated: Washington, D.C. July 9, 2019 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Attachment 1 NLRB Backpay Calculation 1 Case Name: New York Party Shuttle, LLC Case Number: 02-CA-073340 Claimant: Fred Pflantzer Back pay period: 2/12/2012 - 3/31/18 Year Qtr Week Reg OT Hourly Gross End Hours Hours Rate Backpay Quarter Interim Earnings Net Interim Medical Net Backpay Backpay Expenses Expenses & Expenses 2012 2012 2012 2012 2012 2012 1 1 1 1 1 1 1/7 1/14 1/21 1/28 2/4 2/11 2012 1 2/18 19.60 20.00 517 226 2012 1 2/25 20.27 20.00 534 226 2012 1 3/3 24.29 20.00 640 226 2012 1 3/10 24.29 20.00 640 226 2012 1 3/17 28.49 20.00 751 226 2012 1 3/24 28.49 20.00 751 226 2012 1 3/31 17.08 20.00 450 226 2012 1 Total 4,284 1,580 2,704 2,704 2012 2 4/7 17.08 20.00 450 226 2012 2 4/14 23.38 20.00 616 226 2012 2 4/21 25.9 20.00 683 226 2012 2 4/28 23.37 20.00 616 226 2012 2 5/5 21.47 20.00 566 226 2012 2 5/12 23.52 20.00 470 226 2012 2 5/19 26.25 20.00 692 226 2012 2 5/26 25.95 20.00 684 226 2012 2 6/2 24.15 20.00 637 226 2012 2 6/9 24.15 20.00 662 226 2012 2 6/16 24.62 20.00 649 226 2012 2 6/23 24.62 20.00 649 226 2012 2 6/30 25.73 20.00 678 226 2012 2 Total 8,053 2,934 5,118 5,118 2012 3 7/7 25.92 20.00 683 226 2012 3 7/14 25.92 20.00 683 226 2012 3 7/21 13.16 20.00 347 226 2012 3 7/28 11.03 20.00 291 226 2012 3 8/4 11.03 20.00 291 226 2012 3 8/11 11.03 20.00 291 226 2012 3 8/18 13.13 20.00 346 226 2012 3 8/25 25.75 20.00 679 226 2012 3 9/1 25.23 20.00 665 226 2012 3 9/8 22.13 20.00 583 226 2012 3 9/15 22 20.00 580 226 2012 3 9/22 21.25 20.00 560 226 2012 3 9/29 20.95 20.00 552 226 NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 27 NLRB Backpay Calculation 2 Case Name: New York Party Shuttle, LLC Case Number: 02-CA-073340 Claimant: Fred Pflantzer Backpay period: 2/12/2012 - 3/31/18 Year Qtr Week End Reg OT Hours Hours Hourly Rate Gross Backpay Quarter Net Interim Medical Net Backpay Interim Backpay Expenses Expenses & Expenses Eamings 2012 3 Total 6,552 2,934 3,617 3,617 2012 4 10/6 19.13 20.00 529 226 2012 4 10/13 19.05 20.00 502 226 2012 4 10/20 18.63 20.00 516 226 2012 4 10/27 18.34 20.00 483 226 2012 4 11/3 16.63 20.00 438 226 2012 4 11/10 15.11 20.00 398 226 2012 4 11/17 6 20.00 158 226 2012 4 11/24 6.93 20.00 183 226 2012 4 12/1 12.5 20.00 355 226 2012 4 12/8 12.61 20.00 332 226 2012 4 12/15 13.25 20.00 349 226 2012 4 12/22 13.59 20.00 383 226 2012 4 12/29 15.63 20.00 399 226 2012 4 Total 5,027 2,934 2,093 2,093 2013 1 1/5 15.18 20.00 400 2013 1 1/12 12.5 20.00 355 2013 1 1/19 13.05 20.00 344 2013 1 1/26 16.38 20.00 457 2013 1 2/2 16.82 20.00 443 2013 1 2/9 19.5 20.00 539 2013 1 2/16 18_63 20.00 491 2013 1 2/23 13.38 20.00 612 2013 1 3/2 14.66 20.00 387 2013 1 3/9 22.38 20.00 590 2013 1 3/16 23 20.00 606 2013 1 3/23 26.75 20.00 705 2013 1 3/30 25.73 20.00 678 2013 1 Total 6,608 6,608 6,608 2013 2 4/6 19.63 20.00 517 2013 2 4/13 19.26 20.00 508 2013 2 4/20 17.1 20.00 451 2013 2 4/27 18.32 20.00 483 2013 2 5/4 25.67 20.00 677 2013 2 5/11 25.67 20.00 852 2013 2 5/18 27.13 20.00 715 2013 2 5/25 27.13 20.00 715 2013 2 6/1 26.38 20.00 695 2013 2 6/8 26_38 20.00 695 2013 2 6/15 23.13 20.00 610 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB Backpay Calculation 3 Case Name: New York Party Shuttle, LLC Case Number: 02-CA-073340 Claimant: Fred Pflantzer Backpay period: 2/12/2012 - 3/31/18 Year Qtr Week Reg OT Hourly Gross End Hours Hours Rate Backpay Quarter Interim Eamings Net Interim Medical Net Backpay Backpay Expenses Expenses & Expenses 2013 2 6/22 23.13 20.00 610 2013 2 6/29 24.38 20.00 643 2013 2 Total 8,170 8,170 8,170 2013 3 7/6 24.38 20.00 668 2013 3 7/13 28.54 20.00 752 2013 3 7/20 28.39 20.00 749 2013 3 7/27 27.53 20.00 726 2013 3 8/3 27.53 20.00 726 2013 3 8/10 24.63 20.00 649 2013 3 8/17 24.96 20.00 658 2013 3 8/24 26.88 20.00 709 2013 3 8/31 26.88 20.00 709 2013 3 9/7 26.88 20.00 709 2013 3 9/14 26.88 20.00 709 2013 3 9/21 26.88 20.00 709 2013 3 9/28 26.88 20.00 709 2013 3 Total 9,180 9,180 9,180 2013 4 10/5 26.88 20.00 709 2013 4 10/12 14 20.00 369 2013 4 10/19 13 20.00 343 2013 4 10/26 11.75 20.00 310 2013 4 11/2 28 20.00 738 2013 4 11/9 17.75 20.00 468 2013 4 11/16 23.75 20.00 626 2013 4 11/23 21.5 20.00 567 2013 4 11/30 27.5 20.00 725 2013 4 12/7 23 20.00 606 2013 4 12/14 19 20.00 501 2013 4 12/21 34.25 20.00 903 2013 4 12/28 39.5 20.00 1,041 2013 4 Total 7,906 7,906 7,906 2014 1 1/4 18.75 20.00 494 2014 1 1/11 33.75 20.00 890 2014 1 1/18 21.75 20.00 573 2014 1 1/25 28.25 20.00 745 2014 1 2/1 2125 20.00 560 2014 1 2/8 20.75 20.00 547 2014 1 2/15 20.5 20.00 540 2014 1 2/22 14.5 20.00 382 2014 1 3/1 22.25 20.00 587 NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 29 NLRB Backpay Calculation 4 Case Name: New York Party Shuttle, LLC Case Number: 02-CA-073340 Claimant: Fred Pflantzer Backpay period: 2/12/2012 - 3/31/18 Year Qtr Week Reg OT Hourly Gross End Hours Hours Rate Backpay Quarter Interim Earnings Net Interim Medical Net Backpay Backpay Expenses Expenses & Expenses 2014 1 3/8 28.5 20.00 751 2014 1 3/15 34 20.00 896 2014 1 3/22 31 20.00 817 2014 1 3/29 26.25 20.00 692 2014 1 Total 8,476 8,476 8,476 2014 2 4/5 2825 20.00 745 2014 2 4/12 25.5 20.00 672 2014 2 4/19 27.5 20.00 725 2014 2 4/26 27.25 20.00 718 2014 2 5/3 34 20.00 896 2014 2 5/10 26.75 20.00 705 2014 2 5/17 34 20.00 896 2014 2 5/24 32 20.00 844 2014 2 5/31 1925 20.00 508 2014 2 6/7 30 20.00 791 2014 2 6/14 28.75 20.00 758 2014 2 6/21 28 20.00 738 2014 2 6/28 25.5 20.00 672 2014 2 Total 9,669 9,669 9,669 2014 3 7/5 32 20.00 844 441 2014 3 7/12 27 20.00 712 441 2014 3 7/19 21.75 20.00 573 441 2014 3 7/26 21.75 20.00 573 441 2014 3 8/2 7.25 20.00 191 2014 3 8/9 0 20.00 2014 3 8/16 1425 20.00 376 2014 3 8/23 21.5 20.00 567 441 2014 3 8/30 28.25 20.00 745 441 2014 3 9/6 38 20.00 1,002 441 2014 3 9/13 21 20.00 554 441 2014 3 9/20 29.5 20.00 778 441 2014 3 9/27 28.5 20.00 751 441 2014 3 Total 7,665 4,413 3,253 3,253 2014 4 10/4 28.5 20.00 751 441 2014 4 10/11 26.5 20.00 699 441 2014 4 10/18 29 20.00 765 441 2014 4 10/25 11.75 20.00 310 441 2014 4 11/1 28 20.00 738 441 2014 4 11/8 17.75 20.00 468 441 2014 4 11/15 23.75 20.00 626 441 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB Backpay Calculation 5 Case Name: New York Party Shuttle, LLC Case Number: 02-CA-073340 Claimant: Fred Pflantzer Backpay period: 2/12/2012 - 3/31/18 Year Qtr Week Reg OT Hourly Gross End Hours Hours Rate Backpay Quarter Interim Eamings Net Interim Medical Net Backpay Backpay Expenses Expenses & Expenses 2014 4 11/22 21.5 20.00 567 441 2014 4 11/29 27.5 20.00 725 441 2014 4 12/6 23 20.00 606 441 2014 4 12/13 19 20.00 501 441 2014 4 12/20 3425 20.00 903 441 2014 4 12/27 39.5 20.00 1,041 441 2014 4 Total 8,700 5,736 2,964 2,964 2015 1 1/3 18.75 20.00 494 2015 1 1/10 33.75 20.00 890 2015 1 1/17 21.75 20.00 573 2015 1 1/24 28.25 20.00 745 192 2015 1 1/31 21.25 20.00 560 192 2015 1 2/7 20.75 20.00 547 192 2015 1 2/14 20.5 20.00 540 192 2015 1 2/21 14.5 20.00 382 192 2015 1 2/28 22.25 20.00 587 192 2015 1 3/7 28.5 20.00 751 192 2015 1 3/14 34 20.00 896 192 2015 1 3/21 31 20.00 817 192 2015 1 3/28 26.25 20.00 692 192 2015 1 Total 8,476 1,920 6,556 6,556 2015 2 4/4 28.25 20.00 745 424 2015 2 4/11 25_5 20.00 672 424 2015 2 4/18 27.5 20.00 725 424 2015 2 4/25 27.25 20.00 718 424 2015 2 5/2 34 20.00 896 424 2015 2 5/9 26.75 20.00 705 424 2015 2 5/16 34 20.00 896 424 2015 2 5/23 32 20.00 844 424 2015 2 5/30 19.25 20.00 508 424 2015 2 6/6 30 20.00 791 424 2015 2 6/13 28.75 20.00 758 424 2015 2 6/20 28 20.00 738 424 2015 2 6/27 25.5 20.00 672 424 2015 2 Total 9,669 5,509 4,160 4,160 2015 3 7/4 32 20.00 844 424 2015 3 7/11 27 20.00 712 424 2015 3 7/18 21.75 20.00 573 424 2015 3 7/25 21.75 20.00 573 424 2015 3 8/1 31.75 20.00 837 424 NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 31 NLRB Backpay Calculation 6 Case Name: New York Party Shuttle, LLC Case Number: 02-CA-073340 Claimant: Fred Pfiantzer Backpay period: 2/12/2012 - 3/31/18 Year Qtr Week Reg OT Hourly Gross End Hours Hours Rate Backpay Quarter interim Eamings Net Interim Medical Net Backpay Backpay Expenses Expenses & Expenses 2015 3 8/8 28 20.00 738 424 2015 3 8115 25.25 20.00 666 424 2015 3 8/22 21.5 20.00 567 424 2015 3 8/29 28_25 20.00 745 424 2015 3 9/5 38 20.00 1,002 424 2015 3 9/12 21 20.00 554 424 2015 3 9/19 29.5 20.00 778 424 2015 3 9/26 28.5 20.00 751 424 2015 3 Total 9,339 5,509 3,830 3,830 2015 4 1W3 28.5 20.00 751 424 2015 4 10/10 26.5 20.00 699 424 2015 4 10/17 29 20.00 765 424 2015 4 10/24 11.75 20.00 310 424 2015 4 10/31 28 20.00 738 424 2015 4 11/7 17.75 20.00 468 424 2015 4 11/14 23.75 20.00 626 424 2015 4 11/21 21.5 20.00 567 424 2015 4 11128 27.5 20.00 725 424 2015 4 12/5 23 20.00 606 424 2015 4 12/12 19 20.00 501 424 2015 4 12/19 34.25 20.00 903 424 2015 4 12/26 39.5 20.00 1,041 424 2015 4 Total 8,700 5,509 3,191 3,191 2016 1 1/2 18.75 20.00 494 341 2016 1 1/9 33.75 20.00 890 341 2016 1 1/16 21.75 20.00 573 341 2016 1 1/23 28.25 20.00 745 341 2016 1 1/30 21.25 20.00 560 341 2016 1 2/6 20.75 20.00 547 341 2016 1 2/13 20.5 20.00 540 341 2016 1 2/20 14.5 20.00 382 341 2016 1 2/27 22.25 20.00 587 341 2016 1 3/5 28.5 20.00 751 341 2016 1 3/12 34 20.00 896 341 2016 1 3/19 31 20.00 817 341 2016 1 3/26 26.25 20.00 692 84 2016 1 Total 8,476 4,177 4,299 4,299 2016 2 4/2 28.25 20.00 745 750 2016 2 4/9 25.5 20.00 672 750 2016 2 4/16 27.5 20.00 725 750 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB Backpay Calculation 7 Case Name: New York Party Shuttle, LLC Case Number: 02-CA-073340 Claimant: Fred Pflantzer Backpay period: 2112/2012 - 3/31/18 Year Otr Week End Reg OT Hours Hours Hourly Rate Gross Backpay Ouarter Net Interim Medical Net Back pay Interim Backpay Expenses Expenses & Expenses Earnings 2016 2 4/23 27.25 20.00 718 750 2016 2 4/30 34 20.00 896 750 2016 2 5/7 26.75 20.00 705 750 2016 2 5/14 34 20.00 896 750 2016 2 5/21 32 20.00 844 750 2016 2 5/28 19.25 20.00 508 750 2016 2 6/4 30 20.00 791 750 2016 2 6/11 28.75 20.00 758 750 2016 2 6/18 28 20.00 738 750 2016 2 6/25 25.5 20.00 672 750 2016 2 Total 9,669 9,756 2016 3 7/2 32 20.00 844 750 2016 3 7/9 27 20.00 712 750 2016 3 7/16 21.75 20.00 573 750 2016 3 7/23 21.75 20.00 573 750 2016 3 7/30 7.25 20.00 191 750 2016 3 8/6 31.75 20.00 837 750 2016 3 8/13 28 20.00 738 750 2016 3 8/20 25.25 20.00 666 750 2016 3 8/27 28.25 20.00 745 750 2016 3 9/3 38 20.00 1,002 750 2016 3 9/10 21 20.00 554 750 2016 3 9/17 29.5 20.00 778 750 2016 3 9/24 28.5 20.00 751 750 2016 3 Total 8,964 9,756 2016 4 10/1 28.5 20.00 751 750 2016 4 10/8 26.5 20.00 699 750 2016 4 10/15 29 20.00 765 750 2016 4 10/22 1175 20.00 310 750 2016 4 10/29 28 20.00 738 750 2016 4 11/5 17.75 20.00 468 750 2016 4 11/12 23.75 20.00 626 750 2016 4 11/19 21.5 20.00 567 750 2016 4 11/26 27.5 20.00 725 750 2016 4 12/3 23 20.00 606 750 2016 4 12/10 19 20.00 501 750 2016 4 12/17 34.25 20.00 903 750 2016 4 12/24 39.5 20.00 1,041 750 2016 4 12/31 18.75 20.00 494 750 2016 4 Total 9.194 10,506 NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 33 NLRB Backpay Calculation Case Name New York Party Shuttle, LLC Case Number 02-CA-073340 Claimant: Fred Pflantzer Backpay period: 2/12/2012 - 3/31/18 Year Qtr Week Reg OT Hourly Gross End Hours Hours Rate Backpay Quarter Interim Earnings Net Interim Medical Net Backpay Backpay Expenses Expenses & Expenses 2017 1 1/7 33.75 20.00 890 744 2017 1 1/14 21.75 20.00 573 744 2017 1 1/21 28.25 20.00 745 744 2017 1 1/28 21.25 20.00 560 744 2017 1 2/4 20.75 20.00 547 744 2017 1 2/11 20.5 20.00 540 744 2017 1 2/18 14.5 20.00 382 744 2017 1 2/25 22.25 20.00 587 744 2017 1 3/4 28.5 20.00 751 744 2017 1 3/11 34 20.00 896 744 2017 1 3/18 31 20.00 817 744 2017 1 3/25 26.25 20.00 692 744 2017 1 4/1 2825 20.00 745 744 2017 1 Total 8.726 9,672 2017 2 4/8 25.5 20.00 672 744 2017 2 4/15 27.5 20.00 725 744 2017 2 4/22 27.25 20.00 718 744 2017 2 4/29 34 20.00 896 744 2017 2 5/6 - 2017 2 5/13 - 2017 2 5/20 - 2017 2 5/27 - 2017 2 6/3 30 20.00 791 744 2017 2 6/10 28.75 20.00 758 744 2017 2 6/17 28 20.00 738 744 2017 2 6/24 25.5 20.00 672 744 2017 2 7/ 1 32 20.00 844 744 2017 2 Total 6,815 6,696 119 119 2017 3 7/8 27 20.00 712 744 2017 3 7/15 21.75 20.00 573 744 2017 3 7/22 21.75 20.00 573 744 2017 3 7/29 7.25 20.00 191 744 2017 3 8/5 31.75 20.00 837 744 2017 3 8/12 28 20.00 738 744 2017 3 8/19 25.25 20.00 666 744 2017 3 8/26 28.25 20.00 745 744 2017 3 9/2 38 20.00 1,002 744 2017 3 9/9 21 20.00 554 744 2017 3 9/16 29.5 20.00 778 1,844 20 17 3 9/23 28.5 20.00 751 744 2017 3 9/30 28.5 20.00 751 744 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB Backpay Calculation 9 Case Name: New York Party Shuttle, LLC Case Number: 02-CA-073340 Claimant: Fred Pflantzer Backpay period: 2/12/2012 - 3/31/18 Year Qtr Week End Reg OT Hours Hours Hourly Rate Gross Backpay Quarter Net interim Medical Net Backpay Interim Backpay Expenses Expenses & Expenses Eamings 2017 3 Total 8,871 10,772 2017 4 10/7 20.00 2017 4 10/14 20.00 2017 4 10/21 20.00 2017 4 10/28 20.00 - 2017 4 11/4 17.75 20.00 468 744 2017 4 11/11 23/5 20.00 626 744 2017 4 11/18 21.5 20.00 567 744 2017 4 11/25 27.5 20.00 725 744 2017 4 12/2 23 20.00 606 744 2017 4 12/9 19 20.00 501 744 2017 4 12/16 3425 20.00 903 744 2017 4 12/23 39.5 20.00 1,041 744 2017 4 12/30 18.75 20.00 494 744 2017 4 Total 5,932 6,696 2018 1 1/6 33.75 20.00 890 914 2018 1 1/13 21.75 20.00 573 783 2018 1 1/20 28.25 20.00 745 783 2018 1 1/27 2125 20.00 560 783 2018 1 2/3 20.75 20.00 547 783 2018 1 2/10 20.5 20.00 540 783 2018 1 2/17 14.5 20.00 382 783 2018 1 2/24 2225 20.00 587 783 2018 1 3/3 28.5 20.00 751 783 2018 1 3/10 34 20.00 896 783 2018 1 3/17 31 20.00 817 783 2018 1 3/24 26.25 20.00 692 783 2018 1 3/31 28.25 20.00 745 783 2018 1 Total 8,726 10,306 Totals 91,912 91,912 Net Backpay (Withholdings) 91,912 Expenses (No Withholdings) NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 35 Attachment 2 Week Date Weekly Hours Estimated Hours per Tour Estimated Tips per Tour Weekly Tips 2/18/2012 19.60 5.5 $35.00 $124.73 2/15/2012 20.27 5.5 $35.00 $128.99 3/3/2012 24.29 5.5 $35.00 $154.57 3/10/2012 24.29 5.5 $35.00 $154.57 3/17/2012 28.49 5.5 $35.00 $181.30 3/24/2012 28.49 5.5 $35.00 $181.30 3/31/2012 17.08 5.5 $35.00 $108.69 4/7/2012 17.08 5.5 $35.00 $108.69 4/14/2012 23.38 5.5 $35.00 $148.78 4/21/2012 25.90 5.5 $35.00 $164.82 4/28/2012 23.37 5.5 $35.00 $148.70 5/5/2012 21.47 5.5 $35.00 $136.61 5/12/2012 23.52 5.5 $35.00 $149.65 5/19/2012 26.25 5.5 $35.00 $167.05 5/26/2012 25.95 5.5 $35.00 $165.14 6/2/2012 24.15 5.5 $35.00 $153.68 6/9/2012 24.15 5.5 $35.00 $153.68 6/16/2012 24.62 5.5 $35.00 $156.65 6/23/2012 24.62 5.5 $35.00 $156.65 6/30/2012 25.73 5.5 $35.00 $163.74 7/7/2012 25.92 5.5 $35.00 $164.92 7/14/2012 25.92 5.5 $35.00 $164.92 7/21/2012 13.16 5.5 $35.00 $83.73 7/28/2012 11.03 5.5 $35.00 $70.19 8/4/2012 11.03 5.5 $35.00 $70.19 8/11/2012 11.03 5.5 $35.00 $70.19 8/18/2012 13.13 5.5 $35.00 $83.57 8/25/2012 25.75 5.5 $35.00 $163.86 9/1/2012 25.23 5.5 $35.00 $160.57 9/8/2012 22.13 5.5 $35.00 $140.80 9/15/2012 22.00 5.5 $35.00 $140.00 9/22/2012 21.25 5.5 $35.00 $135.23 9/29/2012 20.95 5.5 $35.00 $133.30 10/6/2012 19.13 5.5 $35.00 $121.70 10/13/2012 19.05 5.5 $35.00 $121.25 10/20/2012 18.63 5.5 $35.00 $118.52 10/27/2012 18.34 5.5 $35.00 $116.70 11/3/2012 16.63 5.5 $35.00 $105.80 11/10/2012 15.11 5.5 $35.00 $96.14 11/17/2012 6.00 5.5 $35.00 $38.18 11/24/2012 6.93 5.5 $35.00 $44.10 12/1/2012 12.50 5.5 $35.00 $79.55 12/8/2012 12.61 5.5 $35.00 $80.23 12/15/2012 13.25 5.5 $35.00 $84.32 12/22/2012 13.59 5.5 $35.00 $86.48 12/29/2012 15.63 5.5 $35.00 $99.43 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Week Date Weekly Hours Estimated Hours per Tour Estimated Tips per Tour Weekly Tips 1/5/2013 15.18 5.5 $35.00 $96.59 1/12/2013 12.50 5.5 $35.00 $79.55 1/19/2013 13.05 5.5 $35.00 $83.07 1/26/2013 16.38 5.5 $35.00 $104.20 2/2/2013 16.82 5.5 $35.00 $107.05 2/9/2013 19.50 5.5 $35.00 $124.09 2/16/2013 18.63 5.5 $35.00 $118.52 2/23/2013 13.38 5.5 $35.00 $85.11 3/2/2013 14.66 5.5 $35.00 $93.30 3/9/2013 22.38 5.5 $35.00 $142.39 3/16/2013 23.00 5.5 $35.00 $146.36 3/23/2013 26.75 5.5 $35.00 $170.23 3/30/2013 25.73 5.5 $35.00 $163.75 4/6/2013 19.63 5.5 $35.00 $124.89 4/13/2013 19.26 5.5 $35.00 $122.59 4/20/2013 17.10 5.5 $35.00 $108.79 4/27/2013 18.32 5.5 $35.00 $116.59 5/4/2013 25.67 5.5 $35.00 $163.33 5/1 1/2013 25.67 5.5 $35.00 $163.33 5/18/2013 27.13 5.5 $35.00 $172.61 5/25/2013 27,13 5.5 $35.00 $172.61 6/1/2013 26.38 5.5 $35.00 $167.84 6/8/2013 26.38 5.5 $35.00 $167.84 6/15/2013 23.13 5.5 $35.00 $147.16 6/22/2013 23.13 5.5 $35.00 $147.16 6/29/2013 24.38 5.5 $35.00 $155.11 7/6/2013 24.38 5.5 $35.00 $155.11 7/13/2013 28.54 5.5 $35.00 $181.61 7/20/2013 28.39 5.5 $35.00 $180.69 7/27/2013 27.53 5.5 $35.00 $175.21 8/3/2013 27.53 5.5 $35.00 $175.21 8/10/2013 24.63 5.5 $35.00 $156.77 8/17/2013 24.96 5.5 $35.00 $158.81 8/24/2013 26.88 5.5 $35.00 $171.05 8/31/2013 26.88 5.5 $35.00 $171.05 9/7/2013 26.88 5.5 $35.00 $171.05 9/14/2013 26.88 5.5 $35.00 $171.05 9/21/2013 26.88 5.5 $35.00 $171.05 9/28/2013 26.88 5.5 $35.00 $171.05 10/5/2013 26.88 5.5 $35.00 $171.05 10/12/2013 14.00 5.5 $35.00 $89.09 10/19/2013 13.00 5.5 $35.00 $82.73 10/26/2013 11.75 5.5 $35.00 $74.77 11/2/2013 28.00 5.5 $35.00 $178.18 11/9/2013 17.75 5.5 $35.00 $112.95 11/16/2013 23.75 5.5 $35.00 $151.14 11/23/2013 21.50 5.5 $35.00 $136.82 11/30/2013 27.50 5.5 $35.00 $175.00 12/7/2013 23.00 5.5 $35.00 $146.36 12/14/2013 19.00 5.5 $35.00 $120.91 12/21/2013 34.25 5.5 $35.00 $217.95 12/28/2013 39.50 5.5 $35.00 $251.36 NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 37 Week Date Weekly Hours Estimated Hours per Tour Estimated Tips per Tour Weekly Tips 1/4/2014 18.75 5,5 $35.00 $119.32 1/11/2014 33.75 5.5 $35.00 $214.77 1/18/2014 21.75 5.5 $35.00 $138.41 1/25/2014 28.25 5.5 $35.00 $179.77 2/1/2014 21.25 5.5 $35.00 $135.23 2/8/2014 20.75 5.5 $35.00 $132.05 2/15/2014 20.50 5.5 $35.00 $130.45 2/22/2014 14.50 5.5 $35.00 $92.27 3/1/2014 22.25 5.5 $35.00 $141.59 3/8/2014 28.50 5.5 $35.00 $181.36 3/15/2014 34.00 5.5 $35.00 $216.36 3/22/2014 31.00 5.5 $35.00 $197.27 3/29/2014 26.25 5.5 $35.00 $167.05 4/5/2014 28.25 5.5 $35.00 $179.77 4/12/2014 25.50 5.5 $35.00 $162.27 4/19/2014 27.50 5.5 $35.00 $175.00 4/26/2014 27.25 5.5 $35.00 $173.41 5/3/2014 34.00 5.5 $35.00 $216.36 5/10/2014 26.75 5.5 $35.00 $170.23 5/17/2014 34.00 5.5 $35.00 $216.36 5/24/2014 32.00 5.5 $35.00 $203.64 5/31/2014 19.25 5.5 $35.00 $122.50 6/7/2014 30.00 5.5 $35.00 $190.91 6/14/2014 28.75 5.5 $35.00 $182.95 6/21/2014 28.00 5.5 $35.00 $178.18 6/28/2014 25.50 5.5 $35.00 $162.27 7/5/2014 32.00 5.5 $35.00 $203.64 7/12/2014 27.00 5.5 $35.00 $171.82 7/19/2014 21.75 5.5 $35.00 $138.41 7/26/2014 21.75 5.5 $35.00 $138.41 8/2/2014 7.25 5.5 $35.00 $46.14 8/9/2014 0.00 5.5 $35.00 $0.00 8/16/2014 14.25 5.5 $35.00 $90.68 8/23/2014 21.50 5.5 $35.00 $136.82 8/30/2014 28.25 5.5 $35.00 $179.77 9/6/2014 38.00 5.5 $35.00 $241.82 9/13/2014 21.00 5.5 $35.00 $133.64 9/20/2014 29.50 5.5 $35.00 $187.73 9/27/2014 28.50 5.5 $35.00 $181.36 10/4/2014 28.50 5.5 $35.00 $181.36 10/11/2014 26.50 5.5 $35.00 $168.64 10/18/2014 29.00 5.5 $35.00 $184.55 10/25/2014 11.75 5.5 $35.00 $74.77 11/1/2014 28.00 5.5 $35.00 $178.18 11/8/2014 17.75 5.5 $35.00 $112.95 11/15/2014 23.75 5.5 $35.00 $151.14 11/22/2014 21.50 5.5 $35.00 $136.82 11/29/2014 27.50 5.5 $35.00 $175.00 12/6/2014 23.00 5.5 $35,00 $146.36 12/13/2014 19.00 5.5 $35.00 $120.91 12/20/2014 34.25 5.5 $35.00 $217.95 12/27/2014 39.50 5.5 $35.00 $251.36 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Week Date Weekly Hours Estimated Hours per Tour Estimated Tips per Tour Weekly Tips 1/3/2015 18.75 5.5 $35.00 $119.32 1/10/2015 33.75 5.5 $35.00 $214.77 1/17/2015 21.75 5.5 $35.00 $138.41 1/24/2015 28.25 5.5 $35.00 $179.77 1/31/2015 21.25 5.5 $35.00 $135.23 2/7/2015 20.75 5.5 $35.00 $132.05 2/14/2015 20.50 5.5 $35.00 $130.45 2/21/2015 14.50 5.5 $35.00 $92.27 2/28/2015 22.25 5.5 $35.00 $141.59 3/7/2015 28.50 5.5 $35.00 $181.36 3/14/2015 34.00 5.5 $35.00 $216.36 3/21/2015 31.00 5.5 $35.00 $197.27 3/28/2015 26.25 5.5 $35.00 $167.05 4/4/2015 28.25 5.5 $35.00 $179.77 4/11/2015 25.50 5.5 $35.00 $162.27 4/18/2015 27.50 5.5 $35.00 $175.00 4/25/2015 27.25 5.5 $35.00 $173.41 5/2/2015 34.00 5.5 $35.00 $216.36 5/9/2015 26.75 5.5 $35.00 $170.23 5/16/2015 34.00 5.5 $35.00 $216.36 5/23/2015 32.00 5.5 $35.00 $203.64 5/30/2015 19.25 5.5 $35.00 $122.50 6/6/2015 30.00 5.5 $35.00 $190.91 6/13/2015 28.75 5.5 $35.00 $182.95 6/20/2015 28.00 5.5 $35.00 $178.18 6/27/2015 25.50 5.5 $35.00 $162.27 7/4/2015 32.00 5.5 $35.00 $203.64 7/11/2015 27.00 5.5 $35.00 $171.82 7/18/2015 21.75 5.5 $35.00 $138.41 7/25/2015 21.75 5.5 $35.00 $138.41 8/1/2015 31.75 5.5 $35.00 $202.05 8/8/2015 28.00 5.5 $35.00 $178.18 8/15/2015 25.25 5.5 $35.00 $160.68 8/22/2015 21.50 5.5 $35.00 $136.82 8/29/2015 28.25 5.5 $35.00 $179.77 9/5/2015 38.00 5.5 $35.00 $241.82 9/12/2015 21.00 5.5 $35.00 $133.64 9/19/2015 29.50 5.5 $35.00 $187.73 9/26/2015 28.50 5.5 $35.00 $181.36 10/3/2015 28.50 5.5 $35.00 $181.36 10/10/2015 26.50 5.5 $35.00 $168.64 10/17/2015 29.00 5.5 $35.00 $184.55 10/24/2015 11.75 5.5 $35.00 $74.77 10/31/2015 28.00 5.5 $35.00 $178.18 11/7/2015 17.75 5.5 $35.00 $112.95 11/14/2015 23.75 5.5 $35.00 $151.14 11/21/2015 21.50 5.5 $35.00 $136.82 11/28/2015 27.50 5.5 $35.00 $175.00 12/5/2015 23.00 5.5 $35.00 $146.36 12/12/2015 19.00 5.5 $35.00 $120.91 12/19/2015 34.25 5.5 $35.00 $217.95 12/26/2015 39.50 5.5 $35.00 $251.36 NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 39 Week Date Weekly Hours Estimated Hours per Tour Estimated Tips per Tour Weekly Tips 1/2/2016 18.75 5.5 $35.00 $119.32 1/9/2016 33.75 5.5 $35.00 $214.77 1/16/2016 21.75 5.5 $35.00 $138.41 1/23/2016 28.25 5.5 $35.00 $179.77 1/30/2016 21.25 5.5 $35.00 $135.23 2/6/2016 20.75 5.5 $35.00 $132.05 2/13/2016 20.50 5.5 $35.00 $130.45 2/20/2016 14.50 5.5 $35.00 $92.27 2/27/2016 22.25 5.5 $35.00 $141.59 3/5/2016 28.50 5.5 $35.00 $181.36 3/12/2016 34.00 5.5 $35.00 $216.36 3/19/2016 31.00 5.5 $35.00 $197.27 3/26/2016 26.25 5.5 $35.00 $167.05 4/2/2016 28.25 5.5 $35.00 $179.77 4/9/2016 25.50 5.5 $35.00 $162.27 4/16/2016 27.50 5.5 $35.00 $175.00 4/23/2016 27.25 5.5 $35.00 $173.41 4/30/2016 34.00 5.5 $35.00 $216.36 5/7/2016 26.75 5.5 $35.00 $170.23 5/14/2016 34.00 5.5 $35.00 $216.36 5/21/2016 32.00 5.5 $35.00 $203.64 5/28/2016 19.25 5.5 $35.00 $122.50 6/4/2016 30.00 5.5 $35.00 $190.91 6/11/2016 28.75 5.5 $35.00 $182.95 6/18/2016 28.00 5.5 $35.00 $178.18 6/25/2016 25.50 5.5 $35.00 $162.27 7/2/2016 32.00 5.5 $35.00 $203.64 7/9/2016 27.00 5.5 $35.00 $171.82 7/16/2016 21.75 5.5 $35.00 $138.41 7/23/2016 21.75 5.5 $35.00 $138.41 7/30/2016 7.25 5.5 $35.00 $46.14 8/6/2016 31.75 5.5 $35.00 $202.05 8/13/2016 28.00 5.5 $35.00 $178.18 8/20/2016 25.25 5.5 $35.00 $160.68 8/27/2016 28.25 5.5 $35.00 $179.77 9/3/2016 38.00 5.5 $35.00 $241.82 9/10/2016 21.00 5.5 $35.00 $133.64 9/17/2016 29.50 5.5 $35.00 $187.73 9/24/2016 28.50 5.5 $35.00 $181.36 10/1/2016 28.50 5.5 $35.00 $181.36 10/8/2016 26.50 5.5 $35.00 $168.64 10/15/2016 29.00 5.5 $35.00 $184.55 10/22/2016 11.75 5.5 $35.00 $74.77 10/29/2016 28.00 5.5 $35.00 $178.18 11/5/2016 17.75 5.5 $35.00 $112.95 11/12/2016 23.75 5.5 $35.00 $151:14 11/19/2016 21.50 5.5 $35.00 $136.82 11/26/2016 27.50 5.5 $35.00 $175.00 12/3/2016 23.00 5.5 $35.00 $146.36 12/10/2016 19.00 5.5 $35.00 $120.91 12/17/2016 34.25 5.5 $35.00 $217.95 12/24/2016 39.50 5.5 $35.00 $251.36 12/31/2016 18.75 5.5 $35.00 $119.32 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Week Date Weekly Hours Estimated Hours per Tour Estimated Tips per Tour Weekly Tips 1/7/2017 33.75 5.5 $35.00 $214.77 1/14/2017 21.75 5.5 $35.00 $138.41 1/21/2017 28.25 5.5 $35.00 $179.77 1/28/2017 21.25 5.5 $35.00 $135.23 2/4/2017 20.75 5.5 $35.00 $132.05 2/11/2017 20.50 5.5 $35.00 $130.45 2/18/2017 14.50 5.5 $35.00 $92.27 2/25/2017 22.25 5.5 $35.00 $141.59 3/4/2017 28.50 5.5 $35.00 $181.36 3/11/2017 34.00 5.5 $35.00 $216.36 3/18/2017 31.00 5.5 $35.00 $197.27 3/25/2017 26.25 5.5 $35.00 $167.05 4/1/2017 28.25 5.5 $35.00 $179.77 4/8/2017 25.50 5.5 $35.00 $162.27 4/15/2017 27.50 5.5 $35.00 $175.00 4/22/2017 27.25 5.5 $35.00 $173.41 4/29/2017 34.00 5.5 $35.00 $216.36 5/6/2017 26.75 5.5 $35.00 $170.23 5/13/2017 34.00 5.5 $35.00 $216.36 5/20/2017 32.00 5.5 $35.00 $203.64 5/27/2017 19.25 5.5 $35.00 $122.50 6/3/2017 30.00 5.5 $35.00 $190.91 6/10/2017 28.75 5.5 $35.00 $182.95 6/17/2017 28.00 5.5 $35.00 $178.18 6/24/2017 25.50 5.5 $35.00 $162.27 7/1/2017 32.00 5.5 $35.00 $203.64 7/8/2017 27.00 5.5 $35.00 $171.82 7/15/2017 21.75 5.5 $35.00 $138.41 7/22/2017 21.75 5.5 $35.00 $138.41 7/29/2017 7.25 5.5 $35.00 $46.14 8/5/2017 31.75 5.5 $35.00 $202.05 8/12/2017 28.00 5.5 $35.00 $178.18 8/19/2017 25.25 5.5 $35.00 $160.68 8/26/2017 28.25 5.5 $35.00 $179.77 9/2/2017 38.00 5.5 $35.00 $241.82 9/9/2017 21.00 5.5 $35.00 $133.64 9/16/2017 29.50 5.5 $35.00 $187.73 9/23/2017 28.50 5.5 $35.00 $181.36 9/30/2017 28.50 5.5 $35.00 $181.36 10/7/2017 26.50 5.5 $35.00 $168.64 10/14/2017 29.00 5.5 $35.00 $184.55 10/21/2017 11.75 5.5 $35.00 $74.77 10/28/2017 28.00 5.5 $35.00 $178.18 1 1/4/2017 17.75 5.5 $35.00 $112.95 11/11/2017 23.75 5.5 $35.00 $151.14 11/18/2017 21.50 5.5 $35.00 $136.82 11/25/2017 27.50 5.5 $35.00 $175.00 12/2/2017 23.00 5.5 $35.00 $146.36 12/9/2017 19 5.5 $35.00 $120.91 12/16/2017 34.25 5.5 $35.00 $217.95 12/23/2017 39.5 5.5 $35.00 $251.36 12/30/2017 18.75 5.5 $35.00 $119.32 NEW YORK PARTY SHUTTLE, LLC, D/B/A ONBOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC 41 Week Date Weekly Hours Estimated Hours per Tour Estimated Tips per Tour Weeklv Tips 1/6/2018 33.75 5.5 $35.00 $214.77 1/13/2018 21.75 5.5 $35.00 $138.41 1/20/2018 28.25 5.5 $35.00 $179.77 1/27/2018 21.25 5.5 $35.00 $135.23 2/3/2018 20.75 5.5 $35.00 $132.05 2/10/2018 20.5 5.5 $35.00 $130.45 2/17/2018 14.5 5.5 $35.00 $92.27 2/24/2018 22.25 5.5 $35.00 $141.59 3/3/2018 28.5 5.5 $35.00 $181.36 3/10/2018 34 5.5 $35.00 $216.36 3/17/2018 31 5.5 $35.00 $197.27 3/24/2018 26.25 5.5 $35.00 $167.05 3/31/2018 28.25 5.5 $`35.00 $179.77 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Attachment 3 Adjusted Taxes for Lump Sum Backpay Year 2012 13,533 Single Filer NY 1,595 838 2013 31,863 Single Filer NY 4,333 1,972 2014 24,361 Single Filer NY 3,200 1,474 2015 17,737 Single Filer NY 2,199 1,074 2016 4,299 Single Filer NY 430 260 2017 119 Single Filer NY 12 7 2000 to (Sum) Taxes Paid: 11,770 5,625 2017 91,912 Single Filer NY 16,348 5,563 2018: 0 Excess Tax on Backpay: 4,579 0 Incremental Tax on Backpay: 1,967 Total Excess Tax on Backpay: 6,546 Interest on Backpay: Tax on Interest: Incremental Tax on Interest: Total Excess Tax on Interest: Additional Tax Liability: Total Excess Tax Liability: New York Party Shuttle, LLC 02-CA-073340